Prostate Cancer: NHS/Voluntary Sector Co-operation

Baroness Pitkeathley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as patron of the Prostate Cancer Charity.
	The Question was as follows:
	To ask Her Majesty's Government what steps have been taken to improve co-operation between the National Health Service, the voluntary sector and professional organisations in tackling diseases such as prostate cancer.

Baroness Andrews: My Lords, the Prostate Cancer Advisory Group will meet for the first time on 10th June. A joint NHS and voluntary sector national partnership group has also been set up to develop proposals for a new approach to planning and funding specialist palliative care. In those and other ways the Government place a high value on extending partnership with the voluntary sector across the whole of health and social care.

Baroness Pitkeathley: My Lords, I thank my noble friend for that Answer. The advisory group set up to bring together the prostate cancer charities is popular and I believe will be successful. Does my noble friend think that the model could be replicated among the many other groups in the cancer field as both campaigners and service providers? If so, perhaps she could extend her Answer a little and say what the Government are doing to promote that.

Baroness Andrews: My Lords, we are delighted that out of the Prostate Cancer Charter for Action came the Prostate Cancer Advisory Group. That is a welcome step. The group exists to help government to determine how to raise public awareness. It will help to inform the policy programmes and to monitor progress. It is a very good model. We should like it to be replicated in terms of sharing information and collaboration. There are other models in the field on which we want to build, for example, the palliative care partnership, which I mentioned, which is considering ways of planning and funding palliative care, and is an important development. The National Centre for Volunteering is about to set up a new group to support volunteering policy and practice in health and social care. We are very keen to develop such models.

Lord Clement-Jones: My Lords, the formation of the Prostate Cancer Advisory Group is extremely welcome. However, there are a number of questions surrounding its formation, which are pertinent. Will the group consider the charter for action, how it can be implemented and the resources that will be available from government to do that? In particular, will it consider the question of the information database and whether that will be formed and adopted by the Government in due course? These are important issues.

Baroness Andrews: My Lords, we shall have to wait and see what the meeting on 10th June brings forth. The terms of reference are to review the progress and implementation of the prostate cancer elements of the National Cancer Plan and the NHS Plan; to advise on future policy programmes; to emphasise the importance of raising awareness and to find better ways to do that. Presumably, it is to consider, too, the progress of the prostate cancer risk management programme and how best to develop it. The noble Lord can rest assured that, having been put in position, the group will do a jolly good job.

Lord Brookman: My Lords, notwithstanding the forward programme on this serious issue, have the Government any information on how long it takes before someone with prostate cancer is operated on?

Baroness Andrews: My Lords, as regards waiting times, 95.7 per cent of people who are referred urgently get to see a specialist within that time. That is an important statistic. Part of the problem with prostate cancer is the difficulty in telling how fast it develops. We do not yet have a test which allows us to measure the difference between slow-growing cancers and aggressive cancers. That is one reason why we are spending 20 times more on research into prostate cancer than we were four years ago.

Baroness Oppenheim-Barnes: My Lords, does the Minister agree that awareness is an important factor but that equally important is easily accessible testing on the National Health Service which, although it may not be completely definitive, can be carried out quickly?

Baroness Andrews: My Lords, yes. The science is not yet sufficiently well advanced for us to have a test which is entirely reliable. The current testing throws up false negatives and false positives. The purpose of the prostate cancer risk management programme is to be sure that men who are worried about prostate cancer go to their GPs and get as much information as they can possibly absorb in order to make a judgment about whether they should have the test. Such information also helps GPs to make that judgment. We are doing a great deal of research into the test. As of March this year all the PSA tests will have to be calibrated with the WHO tests. We are looking to improve the tests all the time.

Earl Howe: My Lords, can the Minister tell the House what is being done to increase the number of trained prostate pathologists to cope with the rising demand for diagnosing prostate cancer? Similarly, how many specialist nurses are in training to support prostate cancer patients and GPs?

Baroness Andrews: My Lords, my extensive briefing was not extensive enough. I shall write to the noble Earl on both those questions as I do not have the figures in front of me.

Baroness Gardner of Parkes: My Lords, I, too, declare an interest, as a sponsor of the prostate cancer group. Despite the fact that such tests are still giving false negatives and false positives, can the Minister tell the House whether there is now a greater presentation of men for tests? Women have been very much better at presenting for breast cancer screening than have men for prostate cancer screening. Can the Minister tell the House whether that has changed?

Baroness Andrews: My Lords, the reasons for introducing the prostate cancer risk management programme include not only trying to increase the amount of information in the field which would enable men to make sensible decisions and not be embarrassed, but also to enable us to measure the effect of such a programme on the take-up of testing. We are evaluating the programme and I hope that in a few months we shall be able to give the noble Baroness the information she seeks.

Lord Ezra: My Lords, can the noble Baroness indicate what progress has been made in devising a more reliable test than the PSA test?

Baroness Andrews: My Lords, as I have said, much of our research relates to refining and developing the test itself. The "protect" trial, which involves many thousands of people, will look not only at the test but also at the best forms of treatment. So we are doing a lot of research, but we must keep watching the signs. I shall certainly keep the noble Lord informed of any breakthroughs.

Crossrail

Lord Peyton of Yeovil: asked Her Majesty's Government:
	Why no decision has yet been made on the Crossrail project and how the delay will affect the London infrastructure plan.

Lord McIntosh of Haringey: My Lords, in February, Cross London Rail Links Limited, a joint Strategic Rail Authority/Transport for London company, submitted to Ministers an interim business case for Crossrail. Given the importance of the project for the future development of London and beyond, and the costs involved, it is essential to ensure that the proposals are soundly based, financeable and deliverable. An announcement will be made as soon as is practicable.
	I assume that the Question refers to the Mayor's Spatial Development Strategy, his draft London plan. The final plan should be published towards the end of this year or early next year. There will certainly be more about the prospects for Crossrail during that period.

Lord Peyton of Yeovil: My Lords, does the noble Lord agree that Crossrail is somehow symbolic of our national processes and indicative of our plight? The project has been around for some 15 to 16 years now. It is very much needed and yet it seems to have become bogged down in a welter of committees, consultants—about the only beneficiaries—and reports. The time has arrived for decision. The Department for Transport must be well aware of every argument for and against the issue. I hope that the Minister will push the department to solve this problem as soon as possible, instead of letting it drift on indefinitely and get nowhere while the solution becomes more expensive.

Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Peyton, does a fine line in scorn. I always enjoy being the butt of it. But really this is going a bit too far. The Crossrail project was first proposed in 1989. It was killed off in the Railtrack privatisation by his government. The present project was revived only in December 2000. Yes, of course we take a long time on many of these projects. But when I look back at past projects—the first Channel Tunnel proposal took 15 years to come to nothing; the second Channel Tunnel proposal took 15 years and escalated in cost from £2.6 billion to £12 billion; and the Jubilee Line was late and 67 per cent above cost—is it not better to get it right even if it takes a little longer?

Lord Marsh: My Lords, does the Minister agree that it is precisely those examples which give us a great deal of concern on this particular proposal and this situation? Is not a key problem the inability of the Government so far to make up their mind on the enabling legislation that is required before they can make progress? There are actually only two choices—the Transport and Works Act or a hybrid Bill. That would at least get the project on the move. At a cost of between £7 billion and £11 billion for Crossrail, which is absolutely crucial to the London plan, is he really satisfied with progress at this moment?

Lord McIntosh of Haringey: My Lords, the question of process has indeed been a problem in the past. The chosen route at that time was a private Bill, which foundered against something like 300 objections. The preferred route now is, as the noble Lord, Lord Marsh, rightly said, a hybrid Bill. That of course has all kinds of legal difficulties. But the problem is not the process, but that this is a very expensive project, for which there are a number of alternative developments. We need to be sure that it is right in transport terms, at the right cost and that it produces the right benefits. To rush into something of that kind—

Noble Lords: Oh!

Lord McIntosh of Haringey: We are talking about a short period since the proposal was first put forward.

Lord Faulkner of Worcester: My Lords, does my noble friend agree that if, as now appears increasingly likely, the Government take the very welcome decision to support a bid for the Olympics to be based on the east side of London, the construction of Crossrail is not only desirable but absolutely essential?

Lord McIntosh of Haringey: My Lords, I shall not anticipate the Government's decision on the Olympics. The IOC has a deadline of 15th July. I have no doubt that we shall meet that deadline one way or another. But certainly it is true that the present proposal is for a major stadium in east London and that Crossrail could be of significant benefit to that if it can be completed in time.

Viscount Astor: My Lords, can the Minister confirm that Crossrail is a 50:50 joint venture between the Strategic Rail Authority and Transport for London and that the proposal is to be financed by both the private and public sectors? Bearing in mind the point made by the noble Lord, Lord Marsh, that it could cost up to £11 billion, what proportion of the overall spend will come from the public sector?

Lord McIntosh of Haringey: My Lords, I can confirm that it is a joint venture. The details of the financing are part of the consideration in which we are engaged at the moment. As I have said, in February this year we received an interim business plan. We are working on that as though it were a final plan. But it will not be a final plan until July. We could hardly make a decision until a final business case had been presented.

Baroness Scott of Needham Market: My Lords, is the noble Lord really saying that the Government are not prepared to listen to what is being said throughout the industry that major infrastructure projects in this country, and in London particularly, such as Crossrail, but also Thameslink 2000 and the East London Line will continue to flounder unless there is very strong government leadership in order to pull together the complex array of financial partnerships, operational matters and planning?
	So far as rushing into things is concerned, are we really going to look forward to Thameslink 3000?

Lord McIntosh of Haringey: My Lords, we do two things wrong in this country: we take too long about worthwhile projects; and we perform some projects badly—they are wrongly thought out and involve unanticipated costs. To take the Channel Tunnel rail link as an example, the previous government spent many years arguing about the route. It is only now that the present Government have a grip on the matter and the funding that it is under way—the first section will be open towards the end of this year.
	There is always a balance to be struck, but I do not think that the noble Baroness, Lady Scott, or anyone else would argue for entering into such expensive projects, however worth while, without having the technical assessments, the business case and financing all in place.

The Lord Bishop of Hereford: My Lords, is the Minister aware of another proposal that might make it possible to gain the advantages of Thameslink 2000 more quickly and at much lower cost: the radial rail proposal advanced by Dr JCV Mitchell, which would be compatible with the cross-river tramlink routes—CRT 2 and 3—and would avoid demolishing part of the historic train shed at London Bridge, rebuilding Blackfriars station on the bridge and obscuring that historic view of the City from the west? Is the Minister aware of the radial rail proposal and, if so, will he support it?

Lord McIntosh of Haringey: My Lords, the Question was about Crossrail rather than Thameslink 2000. Alternatives to Thameslink 2000 have certainly been advanced. I am happy to write to the right reverend Prelate about his suggestion.

Afghanistan

Baroness Rawlings: asked Her Majesty's Government:
	What assessment they have made of the progress of the reconstruction operation in Afghanistan.

Baroness Amos: My Lords, schools have reopened and approximately 4 million children have returned. Around 2 million refugees have returned home and 9 million children have been vaccinated against measles. Major efforts are under way to improve security outside Kabul in order to facilitate further development.

Baroness Rawlings: My Lords, I thank the Minister for her Answer. As the humanitarian relief programme is now moving on to reconstruction aid, does she agree that security and stability are paramount for any progress? With that firmly in mind, what is the Government's position on the continuing funding of the warlords by the United States, which is causing instability and is of great concern to the Afghan transitional administration? What is the Government's position towards the ISI, the Pakistan intelligence service, which is still supporting the Taliban, thus causing still further instability in the area?

Baroness Amos: My Lords, I entirely agree that security and stability are paramount. It is only through security and by extending the role of the transitional government to the whole of Afghanistan that we shall achieve further movement. That is why the establishment of provincial reconstruction teams, formerly known as joint regional teams, which will be civilian and military, will help to extend the transitional administration's authority to the regions.
	The noble Baroness asked me specifically about warlords. The situation in the south is especially unstable because warlords continue. We must deal with that as a matter of urgency.

Baroness Northover: My Lords, will the Minister comment on the concern expressed by the United Nations High Commissioner for Refugees, Ruud Lubbers, that the situation in Iraq was distracting attention from Afghanistan? In the light of the fact that there is no security outside Kabul, will she further comment on the lessons that can be drawn from the case of Afghanistan about the time and effort required by the international community to reconstruct countries after conflict?

Baroness Amos: My Lords, on the last point made by the noble Baroness, the time and effort required for reconstruction will vary from country to country. We have said several times in this House that reconstruction takes a long time. In fact, with respect to Iraq, I have tried very hard not to put a time-scale on it, because it is difficult to know.
	On her specific question about whether attention is being taken away from Afghanistan, at the development forum meeting last month, donors reconfirmed their commitment to Afghanistan. We think that the amount pledged in Japan underestimates what is required, but there is also the issue of the capacity of the Afghan authorities, so we must get the balance right. At present, we believe that the funds going in are sufficient for current capacity, but we must continue to build institutions in Afghanistan so that they can increasingly take on that role.

Lord Blaker: My Lords, am I right in thinking that after the fall of the Taliban, the Government took upon themselves the task of limiting the production of opium poppies, which have previously been such a source of the heroin that has come to this country? Nevertheless, production of that poppy has soared alarmingly. Can the noble Baroness give us the latest figures and tell us the what the Government are doing about the problem?

Baroness Amos: My Lords, the noble Lord is quite right. There are a number of lead nations in areas relating to security sector reform and we are the lead nation with respect to counter-narcotics. Last year, I think the figure is that there was a fall of 25 per cent in poppy cultivation. I shall of course write to the noble Lord if that figure turns out to be inaccurate.

Lord Hannay of Chiswick: My Lords, does the noble Baroness agree that the problem in the south of the country, to which she alluded, is not one that is susceptible to a purely military solution; that the real problem is that the Pashtun tribes in the south of the country have not been given a full stake in the new Afghan Government and consider themselves to be out of balance with the Northern Alliance in that government; and that something serious must to be done about that if the southern parts of Afghanistan are not to remain a continuing cause of instability?

Baroness Amos: My Lords, the noble Lord is quite right. The Pashtuns feel that they have been left out of the wider political settlement. That needs to be addressed and is being considered in the context of the work being undertaken by the transitional administration, but also of the work that we are undertaking, with others, to seek security in the south of the country to enable political developments to flow.

Baroness Williams of Crosby: My Lords, the noble Baroness said frankly that there was still a serious problem about security in Afghanistan. I understand that the International Security Assistance Force is still limited to Kabul itself. Are there any plans among the donor nations or the coalition that fought against Afghanistan to extend policing beyond Kabul? Most Afghan representatives that one meets—especially those who visit this country—repeat over and over that it is crucial to get order and law back into the rest of Afghanistan if the country is to have a serious chance of reconstruction.

Baroness Amos: My Lords, of course security is very important. The method being used is the provincial reconstruction teams, which are joint civil/military teams, to deploy outside Kabul. Their primary function will be to extend the authority of the transitional administration to the regions. So far, three have been established under the United States. Other countries are considering whether they can lead PRTs. As I understand it, the US would like to extend the number that it leads. That is a way to ensure security in other parts of the country.

Lord Blaker: My Lords—

Lord Williams of Mostyn: My Lords, I am afraid that we are over time.

Mental Health: Black and Minority Ethnic Groups

Lord Chan: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare that I am patron of the United Kingdom Chinese Mental Health Association.
	The Question was as follows:
	To ask Her Majesty's Government what is their response to the National Institute of Mental Health report Inside Outside on improving mental health services for black and minority ethnic communities in England.

Baroness Andrews: My Lords, the Department of Health has already instigated a programme of activities to improve the care and treatment of black and minority ethnic mental health service users, their carers, families and wider communities. That includes investing in 500 community development workers by 2006 to strengthen community engagement.

Lord Chan: My Lords, I thank the Minister for that Answer, but the report clearly states that mainstream services continue to fail ethnic minority patients. What will the Government do to ensure that mental health organisations prioritise clinical governance, care standards and workforce composition?
	Finally, when will the Minister respond to the growing anxiety and mental distress in the Chinese community about severe acute respiratory syndrome?

Baroness Andrews: My Lords, perhaps I may start by paying tribute to the noble Lord for his excellent and consistent work to bring to the fore the problems suffered by black and other ethnic minorities in mental health services. He has played an outstanding role. I assure him not only that the Government have read with great appreciation the report Inside Outside but that the implementation framework will be presented later this year. The report is still being consulted on. We expect to have the implementation framework very shortly and to have it in action to do the things that he has already suggested—better models of care, better pathways into care for black and ethnic minorities, who are sorely disadvantaged, and addressing the issues of clinical governance.
	As a Statement on SARS will be made later this afternoon, I shall be very happy to answer the noble Lord's final question in that context.

Lord Clement-Jones: My Lords, I join the noble Baroness in congratulating Professor Sashidharan on the report, which is excellent. But many of its implications are very broad as regards cross-governmental working. The noble Baroness mentioned the allocation of funds for community development workers as one of the key recommendations in the report. Is that to happen this year, and has the process already started?

Baroness Andrews: My Lords, yes, it is highly significant that Professor Sashidharan made that a priority. The priority was driven by the black and ethnic communities themselves, because they see it as the essential way of getting people into mental health care and prevention services as quickly and as easily as possible. We expect the process to start immediately. The figure of 500 will take us up to 2006. We hope, and the black and ethnic communities are confident, that we will be able to recruit the sorts of workers who can also take advantage of experience in other fields; for example, in promoting social inclusion.

Earl Howe: My Lords, can the noble Baroness give us any news on the long-awaited mental health Bill?

Baroness Andrews: My Lords, we will bring forward the mental health Bill when parliamentary time allows.

Business

Lord Grocott: My Lords, with the leave of the House, there will be two repeated Statements this afternoon. The intention is that we shall take them at on the conclusion of the Regional Assemblies (Preparations) Bill—in other words, between the two debates this afternoon. The first, on Iraq and Israel/Palestine, will be repeated by my noble friend Lady Symons, and, as my noble friend Lady Andrews said, there will be a Statement on SARS.

Regional Assemblies (Preparations) Bill

Read a third time.
	Clause 2 [Local government referendums]:

Lord Evans of Temple Guiting: moved Amendment No. 1:
	Page 2, line 36, leave out "Part 2 of this Act" and insert "section 13(1) or 16(4)"

Lord Evans of Temple Guiting: My Lords, the government amendments to Clause 2 are minor, technical ones that make good our undertaking to the House on Report to tidy up the clause. Clause 2 provides for referendums on the structure of local government. Specifically, it requires the Secretary of State to put at least two options for unitary local government to a referendum.
	Clause 2(5) requires that those options are based on the recommendations of the Boundary Committee. It does so by means of a reference to recommendations,
	"in pursuance of a direction under Part 2 of this Act".
	In fact, it is possible to be more specific, because the options put to the electorate will be based on recommendations made in pursuance of a direction under either Clause 13(1), which provides for the Boundary Committee to make recommendations to the Secretary of State following a local government review, or Clause 16(4), which provides for the Boundary Committee to make further recommendations if so directed by the Secretary of State following his rejection of its original proposals. As we said on Report, that should be made clear on the face of the Bill. The first government amendment to Clause 2 does just that.
	Similarly, the reference to,
	"a direction under Part 2 of this Act",
	in Clause 2(7) should be made more specific. Again, the reference should be to directions under Clauses 13(1) or 16(4). The second government amendment to Clause 2 deals with that. It does not alter the substantive effect of the clause, which will still require the Secretary of State to wait six weeks after receiving recommendations before moving an order for a referendum. I beg to move.

Baroness Hanham: My Lords, I am extremely grateful to the Minister for his explanation. As he says, it gives rise to the second question, which we discussed on Report. I shall raise the point I wish to make under the next amendment. I thank the Minister for moving Amendment No. 1. While we are all still friends, I thank him very much for all the correspondence over the Recess regarding various amendments.

Baroness Blatch: My Lords, I wish to ask a question about when a referendum is called by the Minister. My understanding is that, when we discussed the Bill throughout the 7th and 8th April, the triggering mechanism—that is to say, the soundings exercise—was discussed at length. Although I was astonished, I took advice that I was always given as a young person: if you write a letter in anger, you should deliver it only after reflection. So the noble Lord, Lord Rooker, has been spared the letter that I would otherwise have written.
	Nevertheless, the question remains: on 9th April, following two days of full debate, including very extensive debate on soundings, I discovered that a Written Question had been answered in this House on 7th April and was printed on 8th April. I picked up my Hansard on 8th April to discover that, in the light of amendments agreed, the soundings exercise had been extended until 16th May. We went all the way through the debate on 7th and 8th April. When I asked at the Clerks' office when the Question was submitted, I was told that it was submitted on 8th April. I said that it was almost impossible that that was done on 8th April simply because I picked up my copy of Hansard at 8.15 a.m. on that day.
	The department knows that I have been asking questions about the matter during the Recess. It appears that not only had the policy decision been made during our discussions at least and the actual administrative arrangements put in place, but the Written Question must have been tabled on 7th April for it to be in print by early on 8th April. It would be helpful for the noble Lord to let me know, first, why the Committee was not informed that the soundings exercise was to be extended and when that decision was taken, but also when the Written Question was submitted to be answered in Parliament.

Lord Evans of Temple Guiting: My Lords, first, the noble Baroness's question is not completely relevant to the government amendment. Secondly, my noble friend Lord Rooker made clear throughout the passage of the Bill that the consultation period would be left open until the last possible moment. But we shall look at what the noble Baroness has said, and my noble friend Lord Rooker or I will write to her if there is substance in it.

Baroness Blatch: My Lords, with the leave of the House, my question is relevant in that it relates to the triggering mechanism for deciding whether or not there should be a referendum. But, if the Minister thinks that it is not relevant to this amendment, it is certainly relevant to the next one. Unless the noble Lord wishes me to repeat my question, it would be helpful to have the answer. The department must know when the soundings exercise will be completed.
	On another point that the noble Lord mentioned, it is of course true that the noble Lord, Lord Rooker, has said time and again during our debate that the consultation period ended on 3rd March. So far as concerns the public, that is when it ended. But the noble Lord went on to say that if other responses trickled in—and some were trickling in—they would be taken into account, which is true. That is very different from a formal reopening of the soundings exercise. It is now formally reopened. Those who made submissions prior to 3rd March, including me, are being written to again and asked whether they wish to reflect on their responses and change them if necessary.
	It is relevant because it is the triggering mechanism for deciding whether there should be a referendum. If the Minister thinks it is not relevant to this amendment, it is certainly relevant to the next. It would be helpful to know the answer. The department must know when the soundings are completed.
	On another point that the noble Lord, Lord Evans, mentioned, the noble Lord, Lord Rooker, has said time and again during our debates that the consultation period ended on 3rd March. As far as the public is concerned, that is when it ended. The noble Lord, Lord Evans, went on to say that if other responses trickle in, and some were trickling in, they would be taken into account. That is very different from a formal reopening of the soundings exercise, which is now formally reopened. Those who made submissions before 3rd March, which includes myself, were written to again and asked if they would like to reflect on their responses and change them if necessary.
	It is relevant and whether it is relevant to this amendment or the next, it would help to know why the Committee was not informed of the extension. It would also help to know when that Question was submitted because one of the answers I was given is that the Government have special arrangements. They must be very special if the Question was submitted on the 8th and printed and in the office for collection by 8.15 a.m.

Lord Campbell of Alloway: My Lords, the noble Lord, Lord Evans, says that the speech of my noble friend is not relevant. Why?

Lord Evans of Temple Guiting: My Lords, I believe the noble Lord, Lord Campbell, is out of order because he is speaking after the Minister.

On Question, amendment agreed to.

Lord Evans of Temple Guiting: moved Amendment No. 2:
	Page 3, line 4, leave out "Part 2 of this Act" and insert "section 13(1) or 16(4)"
	On Question, amendment agreed to.
	Clause 3 [Referendum questions]:

Lord Rooker: moved Amendment No. 3:
	Page 3, leave out lines 32 and 33.

Lord Rooker: My Lords, in moving this amendment I shall speak also to Amendments Nos. 4, 5, 6, 7 and 11.
	At the Report stage of the Bill, your Lordships agreed to amendments to introduce a second referendum in areas with two-tier local government. This local referendum would be about voters' preferences between options for single-tier local government. I undertook to consult the Electoral Commission on the wording of the two questions. My right honourable friend Nick Raynsford, the Minister in charge of the policy, wrote to Sam Younger on 10th April and we received the commission's reply on Thursday 17th April. They made their comments available on the website.
	These six amendments—five to Clause 3 and one to Clause 6—give effect to the Electoral Commission's suggestions. Amendment No. 3 to Clause 3 gives effect to the commission's suggestion to delete the last sentence of the preamble to the question about elected assemblies, which explains that a second referendum is taking place in areas with two-tier local government. The commission feels that it is unnecessary and that to include it may potentially confuse voters in areas that are not affected by local government restructuring.
	Amendment No. 4 is a tidying amendment to make the reference to the local government referendum question refer to the order made under Section 2(2).
	The Electoral Commission makes it clear that its comments are based on an assumption that there would be a single ballot paper. The Government's aim would be to have a single ballot paper in most circumstances. However, we need to provide for the possibility that we may have to hold a further local referendum, on its own, in the event of a result being overturned by the courts. We might also need separate ballot papers if the local government options are numerous—for example, where county areas are combined because one option crosses their boundary. Noble Lords will recall I tried to explain how that would work on Report. The ballot paper could be extensive. In that case, laying out a single ballot paper with adequate provision for partially sighted people would make the ballot paper unwieldy and in these circumstances it would be better to have two ballot papers.
	While we consider the Electoral Commission's comments to be sensible where there is a single ballot paper, we believe provision should be made for circumstances where there is a separate ballot paper for the local referendum. In its advice the Electoral Commission states that, in the event of a local government question being asked on a separate ballot paper, further explanation would be needed in the preamble. Amendment No. 5 makes it clear that the change made by Amendment No. 6 applies only where there is a single ballot paper.
	Amendment No. 6 removes the first sentence of the preamble to the local referendum question, which explains that local government will be reorganised if an elected assembly is established in the region. The Electoral Commission believes that this sentence contains unnecessarily detailed information and that the preamble should focus on the main issue—local government reorganisation—in order to minimise the risk that the voter has to read the preamble several times to understand it.
	Amendment No. 6 also removes the sentence that explains that such reorganisation will go ahead only if an elected assembly is established for the region.
	Amendment No. 7 reinserts this sentence at the end of the preamble. It also sets out the text of the preamble for the local referendum should separate ballot papers be used for local government referendums.
	Amendment No. 11 to Clause 6 enables the Secretary of State to vary the wording of the preamble to the local referendum question if a further local referendum is held, following one which is declared or held to be invalid. It requires the Secretary of State to consult the Electoral Commission on the varied wording before laying an order for that referendum. It also requires him to lay before each House a report stating the views expressed by the commission on the varied wording when the order causing the further referendum is laid. This provision is needed because the ballot paper may need to explain the circumstances of any further local referendum. I trust your Lordships see the merit of giving effect to the Electoral Commission's suggestions as proposed. It makes them easier to understand.
	I will move the other amendments I have spoken to in due course. My noble friend Lord Evans will move Amendment No. 11 when it is called. I beg to move.

Baroness Hanham: My Lords, I suppose we ought to be grateful to the Electoral Commission in that it has done its best to make this almost incomprehensible question more comprehensible and less of a mouthful.
	We have, through the course of what was agreed between the Government and the Liberal Democrats at the last hearing of this, made things far more difficult for voters than they were going to be originally. The new version leaves unresolved how people are going to understand that the words "into a single tier" mean that in those parts of the region that have county and district councils, the county council will vanish. Whatever the proposals, and even if the boundaries of a county council are one of the options, that is still unresolved.
	Even in the instructions to the Boundary Committee the is explanation about this is vague. However, it is one of the most important points that the Government are going to have to bring themselves to spell out. We might touch again on what we discussed about the information that is going to be made available to voters. As every complexity becomes worse, it becomes more essential that proper information is put out by the Government so voters can understand what they are doing.
	My noble friend Lady Blatch mentioned the letter on the soundings exercise and it is fair to say it has still not had a satisfactory explanation. One of the rationales behind that letter was that it might be difficult if people were going to have to understand or there was going to be a possibility of counties being combined or whether there was going to be a another form of local government review which did not end up with the single tiers not crossing boundaries. It is causing confusion. The fact the letter was sent out asking people if they thought the whole thing was better or worse does not seem to have assisted that problem.
	The decision for there to be a second question, which is now going to include options which may or may not cross boundaries, introduces another interesting point and one that is not resolved in the instructions to the Boundary Committee. That is whether the proposals being put forward by the Boundary Committee will be subject to a local inquiry. The document is silent on this point except that it suggests that the Boundary Committee may want to have public meetings—which we all should have—consult Members of Parliament, local authorities, other public bodies and that it may want to publish its proposals in the press.
	This is what it would do under any other local government boundary review. However, any other parliamentary review would be subject to a local inquiry if there were disagreement about the proposals. Under the circumstances now pertaining, this matter becomes even more important since the need to put forward two or more options might lead the Boundary Committee to assume that this was a way by which its proposals could be challenged.
	The basis on which the Boundary Committee will carry out its work is not to be on geographical or local interests particularly, but it can include the performance of the authorities concerned in terms of best value and high performing councils, and the impact on voluntary organisations, business involvement and all the other paraphernalia which surrounds the value for money.
	That will leave the way open for considerable disagreement. Therefore, is it the intention of the Government that those differing views be tested out thoroughly through a local inquiry? If that is not to be the situation, that needs to be made very clear in whatever information is provided by the Boundary Committee to those with whom it is in contact because I believe that it will be a break from the normal procedures. If there is to be room for a local inquiry, it will need to be made clear that several options are being considered.
	There is a very real possibility if the latter is to be the case that electors, organisations and affected authorities will not feel that they have had proper consideration of their case, and the judicial process may very well be invoked. I would be grateful if the Minister would clarify this point, which is not one that has been concentrated on before.
	Finally, I could have sought to amend the question, but decided against adding to this part of the debate. However, our view is that either in the preamble or question it should be made clear that the referendum is not necessarily the final say in the matter: the Secretary of State is. It is on his decision whether the regional assembly should proceed and we believe that that should be made clear.

The Earl of Caithness: My Lords, I am grateful for the Minister's comments. However, my noble friend is right. The key to making this exercise work is clear information for the voter, as well as the implications of the potential vote. I thank the Minister for his letters during the Recess. In respect of the soundings exercise, the second sentence of the first paragraph of the Minister's letter to me dated 16th April states:
	"When the Regional Assemblies (Preparations) Bill reached the House of Lords, you were sent a copy of the soundings exercise document, which was accompanied with a pro forma that could be used for responding".
	I know that the noble Lord is not personally at fault, but I believe that I am not alone in not having received that document. I was grateful to receive the document of the 16th April with the pro forma, but it would have been helpful if his department had not made such a mess in sending it out in the first instance.

Baroness Hamwee: My Lords, the points raised by the noble Baroness perhaps take us back a stage to how local government structure should be dealt with as part of the exercise leading to the establishment of regional assemblies. I shall not repeat the arguments made at earlier stages. These Benches made it clear that we do not believe that the two matters should go hand in hand. But, given that that is the intention of the Government, we welcome their agreement to give local people choice in the matter of their own local government structure.
	I do not believe that the Boundary Committee will put forward options which are unworkable or are problematic in some way. I shall be interested in the Minister's comments about an inquiry. However, it seems to me that it does not recognise that the thrust of these amendments is to support the decision which your Lordships made about giving people a choice as to the structure of local government in their own area.
	I agree with the noble Earl about the necessity for clear information for voters. But that is not a matter that can be resolved fully by what is on the referendum paper. There is much more to be explained than can be included in what is essentially a ballot paper.

Lord Hanningfield: My Lords, I, too, should like to clarify one or two points with the Minister. The day after Report stage I went to Essex County Council where I am leader. I had received a letter asking me to comment again on the soundings exercise and that because of the new clauses we had until 16th May to respond. I was most surprised and I think it was discourteous to Members of this House not to have been told the previous day that the letter, which I received as leader of Essex County Council, had been sent.
	My noble friend Lady Hanham said that the Secretary of State will finally decide. All the correspondence that the local authority now receives implies that the referendum will be binding; that is, "You will decide if you want a region or not". Therefore, the discussions in Committee and on Report, when the decision was ultimately left with the Secretary of State, now seems to have disappeared. I am now unsure as to how the Bill stands. The correspondence definitely states:
	"You will decide whether you want a region or not and your vote in the referendum will actually decide that".
	I should like the Minister to clarify that position. It is obviously important whether the Secretary of State will still have the power to not establish a regional assembly if the people vote for it.
	In line with that, what is the position of the Secretary of State when there is a vote on two types of reorganisation? If the majority of people vote in a referendum for one reorganisation system, presumably the Secretary of State would go along with that model and not choose the other model. That is unclear. In the initial stages of this discussion, all the power rested with the Secretary of State. I am now unsure of the position. At this stage, that should be clarified.

Lord Rooker: My Lords, I have just handed the Opposition Front Bench a note stating that I shall accept Amendment No. 8 when we reach it. Therefore, I am amazed to be hearing all these speeches, which are going back to Second Reading issues almost. I am trying to be as helpful as possible as regards the points raised by the Opposition. All the points that I have made during the Bill are operative. None of them is inoperative.
	I never said the closing date for the soundings was 3rd March. That was the announced date. I constantly made it clear that once the Bill was before Parliament we would be open to comments from parliamentarians or anyone else. Turning to the point concerning the letter—talk about making a mountain out of a molehill! We made a substantial change to the Bill following the amendments proposed by the noble Baroness, Lady Hamwee. We knew that we would accept the amendments before coming to the Chamber. The planning had been done. It was abundantly clear. There was no issue about that. Therefore, we made the appropriate preparations to determine the consequences of accepting that amendment. In any effect, there were consequential amendments. We had to inform those people who contributed to the soundings exercise should they want to comment further. On our part, that seemed fair enough.
	Therefore, on 7th and 8th April at Report stage, Written Answers were organised so that everyone had the right to know what was occurring and, therefore, had the chance to comment again if it was thought appropriate. On 16th April—which is on the record—it was not discourteous not raising the matter. At the time that I was making the speeches in the Chamber probably I was unaware of the date. We were busting a gut as it was. Yes, I signed the letters, but I am uncertain as to what precise date and hour that I signed. I signed the letters during the course of the Bill which was on the Floor of this House on two consecutive days when we were making substantial changes at the request of one opposition party. The other opposition party does not want the Bill anyway.
	I was trying to ensure that those outside who were following our affairs could have the most up-to-date information should they want to comment further. The letters were prepared and sent out. Therefore, a parliamentary Question and Answer were prepared so that Parliament was informed in a similar way. There is nothing discourteous in that at all. I do not know why a meal is being made of this now.

Baroness Blatch: My Lords, I was not complaining about the letters signed by the noble Lord. The Question for Written Answer was signed on 7th April and we were not informed. The noble Baroness who tabled the Question is in her place. I was told by the Clerks—who took a long time to check this during the Easter Recess—that in fact it had been tabled on 8th April. But it could not possibly have been tabled on that day. The policy decision must have been taken at the latest on 7th April and the Question tabled on that day for printing on 8th April. I wish simply to make that point. Furthermore, it was the noble Lord personally who signed the response to the Question.

Lord Rooker: My Lords, it was my responsibility to sign the response to the Question. What I do not know without checking—although to be frank no one will be able to tell me—is at what time of day I signed it. It is not possible for me to specify the exact time at which I signed the response, but the fact that it was printed in Hansard on 8th April leads me to believe that I must have signed it late on the 7th, but I cannot be certain. I do not know.
	The fact is, however, that we produced the information for the House and for everyone else concerned as soon as we could in a practical way. Given that, I do not know why the noble Baroness is making such a meal of this. I know that she does not want the Bill to proceed. That is axiomatic.
	I shall answer the points raised in the debate. We have to leave the arrangements to the boundary committees. They are independent bodies and they have a remit. How they choose to go about finding the best options for local government in the regions is up to them. It is inconceivable that they would do that without listening to the views of local people and organisations. However, how they propose to gather those views is entirely up to them. Furthermore, I am certain they will ensure that their work is judge-proof. They will not fall into the trap being laid for them by the Opposition Front Bench, which does not want the Bill because it does not want to see elected regional assemblies in the first place.
	We should trust the boundary committees on the basis of the work they have done so far. With the knowledge available to them from the Electoral Commission, they will come up with options to put before the electorate in a clearly understandable fashion, having taken soundings and listened to the views of all those involved.
	Turning to the point raised about whether the referendum results would be binding, to the best of my knowledge—although I stand to be corrected—the word "binding" has never been used because they would not be binding. I have always made that clear. Noble Lords will see that on page 2, line 24 the preamble states:
	"You can help to decide . . . ",
	and goes on to detail the nature of the referendum. However, if the outcome is a clear majority one way or the other, or even if it is unclear, it would be a brave Secretary of State who decided not to accept the result.
	I do not know why noble Lords are introducing red herrings. They are seeking somehow to delay the Bill. It is clear that ultimately the Secretary of State must make a judgment both on the work of the boundary committees and on how to proceed following the results of the referendums. That judgment will now be somewhat more complex because of the options being offered in two-tier areas. I see no difficulty in that.
	For the avoidance of doubt, I repeat the point that we shall ensure that the consequences of what people are voting for will be explained in an understandable and readable fashion before any referendum takes place. By that I do not mean an hour or a day before, but in good time. People will fully understand the powers being conferred and what the assemblies will do, as well as the consequences for local government in their area, if they choose to vote in favour.

Baroness Hanham: My Lords, before the Minister sits down, would he address himself to the question that I asked him? Will the local boundary committee have the power to hold a local public inquiry on its proposals, whether one, two or four options are introduced? This is important because it is a normal element of the procedure for every boundary committee review. The committee should be able to hold a local inquiry for those who wish to put forward their views and to discuss them in detail. I do not refer simply to consultation, but to a proper, formal inquiry. That was the question I put and I would be grateful if the Minister, who is unusually acerbic today, could answer it.

Lord Rooker: My Lords, I am cheesed off, having been ultra friendly and having wrung an extra little concession out of my right honourable friend Nick Raynsford as late as twenty past two this afternoon. I did that because I thought it would aid the progress of the passage of the Bill. Furthermore, I acknowledge the powerful arguments in support of the amendment put forward by the noble Lord, Lord Hanningfield. This morning I had a long discussion with my right honourable friend in the spirit of wishing to be helpful to this House. However, being helpful has got me a slap in the face on other amendments. I can say honestly that I will not do it again on this Bill.
	Let us return to the function of the boundary committees. They will prepare a proposal covering the options for their region. Obviously more than one option will be put forward. They will do that in line with the statutory criteria. The options will be published in draft form so that people can consider the initial ideas for a possible way forward. The committees will publicise those recommendations and invite specific representations from all and sundry to put forward their views. As a part of the process, although it will be entirely up to them, they may set up or attend informal public meetings. There is no formal provision for a judicial public inquiry as there is for parliamentary boundaries, often involving London-based lawyers who take charge of inquiries being held in the Midlands and the North—or at least that has been my experience.
	It will be for the boundary committees to decide how they organise their consultations because they must listen to the views of all those concerned in response to their draft recommendations. They must go out into the regions to do that because it could not possibly be done using only correspondence from London. However, it is up to the committees themselves to make their own arrangements. It is not for the Government to tell them how to conduct their consultations. Ultimately, the committees will have to produce final reports for Parliament to consider.
	I shall make one further point. As regards local government reviews, formal public inquiries are not provided for in the procedures set out in the Local Government Act 1992. The inquiries in which Members of another place are involved are highly formal procedures. However, that does not alter the fact that informal inquiries and meetings organised and perhaps chaired by boundary committees or by others on their behalf will have as much validity as any parliamentary boundary review inquiry that I have ever experienced.

Baroness Hanham: My Lords, I wish to be absolutely clear on this point: there is no power for a local inquiry to be held on the reviews put forward by the local boundary committee.

Lord Rooker: My Lords, I have just said that the boundary committees can either themselves set up or attend informal public inquiries. However, the legislation under which we are working, the Local Government Act 1992, does not allow for formal public inquiries to be held in regard to changes to local government.

On Question, amendment agreed to.

Lord Rooker: moved Amendments Nos. 4 to 7:
	Page 3, line 34, after "of" insert "an order under"
	Page 3, line 39, at beginning insert "If the same ballot paper is used for both a referendum held in pursuance of an order under section 1 and a referendum held in pursuance of an order under section 2(2)"
	Page 3, line 42, leave out from beginning to end of line 2 on page 4.
	Page 4, line 5, at end insert "There will be no such reorganisation if an elected assembly is not established.
	(4A) If the same ballot paper is not used for both referendums as mentioned in subsection (4) the following statement (in as nearly as may be the following form) must precede the question on the ballot paper used for a referendum held in pursuance of an order under section 2(2): "If an elected assembly is established for the (insert name of region) region, it is intended that local government will be reorganised into a single tier in those parts of the region that currently have both county and district councils.
	Your part of the region currently has both county and district councils. You can help to decide how local authorities in your part of the region will be reorganised into a single tier. There will be no such reorganisation if an elected assembly is not established."."
	On Question, amendments agreed to.
	Clause 6 [Further referendums]:

Baroness Blatch: moved Amendment No. 8:
	Page 5, line 8, leave out "five" and insert "seven"

Baroness Blatch: My Lords, I am very grateful to the noble Lord, but I have to say that this is not a momentous concession. Although the noble Lord was uncharacteristically acerbic in his response to my noble friend Lord Hanningfield, it was not my noble friend who spoke to this amendment on Report; I did so. On 7th April my noble friend was away sick and so I introduced Amendment No. 22, which stated:
	"Page 3, line 15, leave out "five" and insert "ten".
	The debate is recorded at cols. 116 to 124 of Hansard. The noble Lord, Lord Rooker, responded. I should say to my noble friend that if the argument was persuasive, then I accept the compliment. The argument for a longer gap is overwhelming. We would have liked it to have been a gap of 10 years.
	I believe that the noble Lord is still insisting that my noble friend Lord Hanningfield took this amendment, but a glance at Hansard will show that I spoke to it on his behalf. I shall give way.

Lord Rooker: My Lords, I do not care who took the amendment. However, at some stage—I suspect in Committee rather than on Report—the noble Lord, Lord Hanningfield, made a powerful speech on this issue. He mentioned the problems that could arise if a second referendum were held in under five years. He spoke as the leader of a county council in a very powerful and practical fashion. The reverberations of that speech were reflected in the discussions I had this morning with my right honourable friend Nick Raynsford—not, I regret, the points made by the noble Baroness.

Baroness Blatch: My Lords, I used the same arguments as my noble friend Lord Hanningfield but they were not sufficiently persuasive for the Minister to concede the point at Report stage. The arguments have not changed between Report stage and Third Reading. At the end of the proceedings on 7th April I said that if the Government would not accept 10 years I would consider returning with an amendment for seven years, which I am now doing. As I said, I am grateful to the Minister for accepting that there should be a seven-year gap.
	During the debate at Report stage the Minister twice said:
	"For a second referendum to take place, the soundings would have to be more decisive than the soundings that triggered the first referendum".—[Official Report, 7/4/03; col. 121.]
	Given that the Minister and the Front Bench of the Liberal Democrats refuse to accept a constraint on the Secretary of State that in determining whether the soundings have shown a sufficient level of interest for a referendum to be called there should be some evidence that it was more likely to produce a positive result and if the soundings on a second referendum would have to be more decisive, it would be helpful to know how decisive the first soundings would have to be.
	What the Minister has said today and on previous occasions in regard to whether a "Yes" vote in a referendum with a majority of only one or more will be decisive is causing great concern among our colleagues in local government. The Bill states that it will not be; that it is a matter for the Secretary of State to make a judgment. The Minister has again said that if there is a slight majority it will be a matter for the Secretary of State. He also said that, when faced with a "Yes" vote—however slight—it would be a brave Secretary of State who did not say that that side had won.
	We accept that. It has been that way in local government since Adam was a boy where there is a majority of one. Sometimes, if there is no majority at all, a coin is tossed to decide who wins. But there is always a decision based on a vote. We understand it will be different with these referendums and that there will be a subjective decision by the Secretary of State. I say "subjective" advisedly because the Minister has given no indication whatever of what will weigh in the Secretary of State's mind in deciding whether or not the result of a referendum is definitive.
	Those voting in a referendum—either for or against—will expect the result, whatever it may be, to be definitive. We now understand that it will not be definitive. Although we welcome the fact that the Government have conceded that there should be a seven-year gap rather than a five-year gap before the procedure can be repeated, it would be helpful to know what will help the Secretary of State to decide whether or not a "Yes" vote is definitive. If a "Yes" vote is not to be definitive, under what criteria will the Secretary of State make that judgment?
	It is not good enough to say that we are being difficult for the sake of it. Ultimately, when the Bill receives Royal Assent, people throughout the whole of the country—especially those in areas where a referendum is to be called—will need to understand what will be up for judgment; what criteria will be used by the Secretary of State in making those judgments; and what their votes are worth. I beg to move.

Lord Stoddart of Swindon: My Lords, this is a good amendment. I would have preferred a 10-year period but, nevertheless, we should be grateful for the fact that the Minister has moved on the matter. Seven years is certainly a much better period than five years.
	The other point I should like to make—I was tempted to table an amendment but, when I thought about the matter, I realised that the problems involved would be difficult to resolve—is what will happen if an elected regional assembly turns out to be an absolute disaster so far as the people are concerned. If the local authorities and the general public believe a regional assembly to be a complete and utter waste of money, that it is interfering in all kinds of matters in which it should not interfere and in which it did not have the power to interfere before it was set up, what remedy will be available to the people of the area?
	The Minister will say, "Well, we are a listening government". I am not at all sure about that but, nevertheless, the Government boast that they are. If there were resolutions from local councils, for example, and representations from ordinary people that the elected regional assemblies were not doing the job that they were expected to do and were exceeding what was expected of them, would the Government be receptive to holding another referendum to ascertain whether regional assemblies should be abandoned and a different kind of local government, with real powers, re-established?

The Earl of Caithness: My Lords, having been a supporter of an increase in the five years all the way through the Bill, I thank the noble Lord, Lord Rooker, for accepting the amendment. It is a small step forward. It would have been much nicer to have had 10 years, but seven years is better than five.

Lord Rooker: My Lords, I am new in this place. We have had Committee stage, we have had Report stage, we are on Third Reading; I will not deviate from the amendments before the House. I gladly accept this amendment on the strength of the arguments made at previous stages. I doubt that we would have accepted 10 years. Seven years is a modest period. It gives almost a guarantee that where there is a "No" vote in a region there will not be any activity for, say, five years because one would have to carry out soundings and so on beforehand. That will give the period of stability for local government which I believe was the kernel of the arguments made by the noble Lord, Lord Hanningfield, when he initially chopped me to pieces.
	As regards the other points, we have, with respect, debated them before. They are not relevant to the amendment and we are at Third Reading.

Baroness Blatch: My Lords, with the leave of the House I shall ask the Minister a relevant question. The noble Lord has not answered the question in regard to a "Yes" vote. He described it as a deviation. My amendment increases the gap from five years to seven years following a referendum "No" vote, but what happens where there is an extremely narrow "Yes" vote which the Secretary of State regards as insufficient to establish a regional assembly? The Minister has said on a number of occasions that that is feasible and possible because the Bill allows for it to happen. So what will happen following a referendum which does not result in a "No" vote but in a "Yes" vote which is not sufficiently robust to establish a regional assembly? Could the gap be one year, two years, three years, four, five or six years, or would it also be bound by the seven-year gap?

Lord Rooker: My Lords, the answer is to be found on page 5 of the Bill. Clause 6(1) states that subsection (2) applies if a referendum is held in a region under Clause 1 and,
	"(b) a majority of the votes cast . . . is against there being an elected assembly for the region".
	No further order may be made in relation to that until the end of a period of five years. That five years has now become seven years. Everything else remains as it is.

On Question, amendment agreed to.

Lord Evans of Temple Guiting: moved Amendment No. 9:
	Page 5, line 16, after "held" insert "in a county area"

Lord Evans of Temple Guiting: My Lords, Amendments Nos. 9 and 10 are minor technical amendments to remove any doubts that might otherwise exist about the meaning of subsections (4) and (5). Those subsections provide that when the result of a local government referendum has subsequently been ruled invalid, it can be rerun. Obviously, it makes sense to rerun the referendum only in a county area in which the result has been successfully challenged, rather than throughout the region.
	I take a practical but, of course, purely hypothetical example. If there were a referendum in the West Midlands and separate proposals were made to the voters in each of the county areas of Worcestershire, Warwickshire, Staffordshire and Shropshire and, following referendums, the results in Worcestershire were challenged and held invalid, we might want to rerun the referendum in that county area, but there would be no reason to rerun the referendums in Warwickshire, Staffordshire and Shropshire. We want to avoid any suggestion that, because subsections (4) and (5) both make reference to orders "under section 2(2)", and because that subsection requires a referendum in each county area, we would hold referendums throughout the region again. That would be plainly absurd. Amendments Nos. 9 and 10 ensure that, in my hypothetical example, we would need to rerun the referendum only in Worcestershire. I beg to move.

Baroness Hanham: My Lords, with reference to the Minister's hypothetical world, one reason why the letter was sent out about the soundings exercise was that there was a possibility that local government review or reform might take place across or including county councils. How many county councils or county areas will be reinvolved in the subsequent referendums, if necessary? If the one in Warwickshire went wrong, what would happen with the neighbouring areas that might be involved with the cross-cutting and cross-thrusting?
	This is a difficult technical amendment. Presumably, the rationale behind any local government reform will be that it works across the region, across the counties and district areas in their totality. It seems extraordinary that one could rerun a referendum in one county area.

Lord Evans of Temple Guiting: My Lords, I took a hypothetical example that made the matter absolutely clear. I see no problem in doing precisely what we argue in the amendment, and my view is shared by my noble friend Lord Rooker.

On Question, amendment agreed to.

Lord Evans of Temple Guiting: moved Amendments Nos. 10 and 11:
	Page 5, line 18, after "held" insert "in that county area"
	Page 5, line 33, at end insert—
	"(7A) For the purposes of a referendum held in pursuance of an order under subsection (5) the Secretary of State may by order vary the terms of the statement set out in section 3(4A).
	(7B) Before an order under subsection (7A) is laid before Parliament in pursuance of section 29(2) the Secretary of State must consult the Electoral Commission as to the wording of the statement as so varied.
	(7C) At the time when the order is so laid the Secretary of State must lay before each House a report stating any views which the Commission have expressed in response to the consultation as to the intelligibility of the statement as so varied."
	On Question, amendments agreed to.
	Clause 10 [Expenditure]:

Lord Evans of Temple Guiting: moved Amendment No. 12:
	Page 7, line 22, at end insert—
	"( ) Counting officer includes a person appointed in pursuance of an order under section 2(9) for the purpose of certifying the number of ballot papers or votes cast in a referendum held in pursuance of an order under section 2(2)."

Lord Evans of Temple Guiting: My Lords, Amendment No. 12 is consequential on the amendment moved by the noble Baroness, Lady Hamwee, on Report. It makes it clear that the term "counting officer" includes any person appointed in pursuance of an order under Clause 2(9). That subsection enables a Minister of the Crown to make provision by order,
	"as he thinks appropriate in connection with a",
	local referendum.
	Counting officers for the purposes of regional referendums are defined in the Political Parties, Elections and Referendums Act 2000—the PPER Act. Clause 12(5) states that expressions used in Part 1 of the Bill and in Part 7 of the PPER Act have the same meaning. However, local referendums will not fall under the PPER Act. Therefore, the amendment is necessary to ensure that the term "counting officer" used in Clause 10 applies to counting officers for local referendums, so that the necessary expenditure provision can be made. The amendment is essentially a tidying amendment. I beg to move.

On Question, amendment agreed to.
	Clause 11 [Exclusion of legal proceedings]:

Lord Rooker: moved Amendment No. 13:
	Page 7, line 32, at end insert—
	"unless the proceedings are brought in accordance with this section.
	( ) The proceedings must be brought by a claim for judicial review.
	( ) The court must not give permission for the claim unless the claim form is filed before the end of the period of six weeks starting with the certificate date.
	( ) The certificate date is—
	(a) the date on which a certificate as to the matters mentioned in subsection (1)(a) or (b) is given by the Chief Counting Officer, counting officer or other person mentioned in subsection (1)(b);
	(b) if there is more than one such certificate in a referendum the date on which the last such certificate is given."

Lord Rooker: My Lords, Amendment No. 13 seems to have been grouped with Amendment No. 14.
	We have had several debates on this matter, and I hope that I can now satisfy noble Lords that the ouster clause is worth having and is more understandable with the amendment. The amendment tackles the problem of the clause. It was always a problem that the clause stated that "No court shall entertain", as I would then have to explain to noble Lords how the court could, in fact, entertain. That was very difficult to explain. There is some doubt about whether a challenge would be considered if the clause were left as it stands. We do not want that doubt to exist.
	The amendment will make it clear that the courts can consider fraud committed by a third party. I hope that dispels some of the less well-founded doubts of noble Lords. The amendment will ensure that courts can consider any challenge to the certificate of the number of ballot papers or votes cast so long as two simple conditions are met. First, the proceedings must be brought by a claim for judicial review, which means that a challenge must be considered by the High Court. Secondly, the claim must be brought within six weeks of the count being declared.
	I said on Report that I would give noble Lords a plain English explanation of the revised clause. I hope that, with this amendment, it makes sense. In short, legal challenges to referendum counts can be brought by way of judicial review within six weeks of the count and on any grounds. I hope that noble Lords accept that the amendment addresses the concerns expressed during the passage of the Bill and that the impact of the amended ouster clause is clear.
	Various periods of time during which a challenge might be allowed have been proposed as we have debated the Bill at its different stages. We need to be able to get on reasonably quickly with establishing an elected assembly when a region has voted in favour. A period of six weeks strikes the right balance between allowing for the challenge and the need to get on with establishing the assembly. The amendment makes clear the terms under which the legal challenge may be brought and makes it clear that the courts could consider a challenge in the case of third-party fraud. It improves the Bill in the way urged by noble Lords. I beg to move.

Baroness Blatch: My Lords, I am grateful that my amendment has been grouped with Amendment No. 13.
	I should preface my comments by saying that we are grateful that the amendment responds to the arguments that we put all the way through the Bill that there should be a possibility of legal challenge. The fact that the clause began by stating:
	"No court shall entertain any proceedings for questioning",
	suggested that there was no possibility of a legal challenge.
	We believe that we have won the argument, because the welcome amendment introduced by the Minister allows for a challenge. The challenge is restricted in the way we accepted when we first tabled our amendments in Committee and on Report, and which we accept now. The timing is about right; I originally suggested a much tighter timescale, but the newly proposed timescale is reasonable. However, we are still misled by the Bill.
	The clause is headed, "Exclusion of legal proceedings". That means that the clause describes the exclusion of legal proceedings, which is a messy way of expressing it. Paragraphs (a) and (b) are introduced by the statement:
	"No court shall entertain any proceedings for questioning".
	One has to get to the bottom of the clause, as amended by the Government's amendment, before one finds the exemptions, which are very extensive. The court will entertain challenges subject to certain exemptions.
	My Amendment No. 14, headed, "Legal challenge", states:
	"A court shall only consider proceedings for questioning—
	(a) the number of ballot papers or votes cast in a referendum held in pursuance of an order under section 1 as certified by the Chief Counting Officer for the referendum or by a counting officer, or
	(b) the number of ballot papers or votes cast in a referendum held in pursuance of an order under subsection (2) of section 2 as certified by a person appointed for the purpose in pursuance of an order under subsection (9) of that section, if—
	(i) the proceedings are brought in accordance with this section, and
	(ii) a claim if filed within six weeks from the date on which a certificate in relation to subsection (1)(a) or (b) is issued by the Chief Accounting Officer, counting officer or other person mentioned in subsection (1)(b)".
	Therefore, it is very clear that there is such a thing as a legal challenge. I repeat that the proposed new clause is headed "Legal challenge". It states that,
	"A court shall only consider proceedings for questioning"
	if the following conditions are met. The proposed new clause further states:
	"If there is more than one such certificate for a referendum, the date on which the last certificate is issued should apply".
	Even the words,
	"the last certificate is issued should apply"
	are missing from the government amendment. I speak in the interests of what I call plain English. I do not think that the wording of the Bill as amended by Amendment No. 13 is at all clear. As I say, it is headed, "Exclusion of legal proceedings" and states that,
	"No court shall entertain any proceedings".
	It is rather messy. It is only when one reaches the end of the clause, as amended by Amendment No. 13, that one realises that a legal challenge is possible subject to certain restrictions.
	I am grateful for the Government's change of heart. The Minister has shown himself to be on the side of the House as regards the matter we are discussing. Previously noble Lords on all sides of the House showed their concern about the matter. The Minister has fought his corner extremely effectively. However, as I say, I believe that my Amendment No. 14 is clearer and is much more encouraging for local authorities or, indeed, for the electorate if they have concerns about a legal challenge as it constitutes a positive rather than a negative statement. I beg to move.

Baroness Hamwee: My Lords, I believe that we are speaking to the Minister's Amendment No. 13.

Baroness Blatch: My Lords, I apologise to the House. I should not have said, "I beg to move" as I believe that Amendment No. 13 has been moved.

Baroness Hamwee: My Lords, I am sorry. I was not trying to trip up the noble Baroness. I was trying to make clear which amendment I was speaking to.
	We on these Benches are also grateful to the Minister for clarifying the matter. I certainly feel considerably more comfortable about the clause than I did at an earlier stage. The noble Baroness criticised the wording of the clause. I suppose it is almost inevitable in the case of a government amendment being tabled at this stage that rather than deleting the whole clause and starting with the words,
	"Proceedings shall only be taken if",
	the amendment is added to the existing wording of the Bill. I suppose we should expect that.
	Will the Minister confirm that the heading of Clause 11, "Exclusion of legal proceedings", does not have legal force? Perhaps the clause could be headed simply "Legal proceedings" or with words that are a little less misleading to someone reading the clause headings. As I say, we on these Benches thank the Minister and his colleagues for tabling the amendment.

Lord Campbell of Alloway: My Lords, I have to oppose Amendment No. 13 for the reasons given by my noble friend Lady Blatch. I shall support Amendment No. 14. It seems to be common ground that Clause 11 cannot stand. I do not quite take the point that has just been made that at this stage of the Bill it is better to seek to retain and amend a clause rather than remove it, especially when the clause in terms is the exclusion of legal proceedings and the substance of the amendment is to confer a form of legal proceedings.

Baroness Hamwee: My Lords, with the leave of the House, I must have gabbled. I said that I supposed it was inevitable that Amendment No. 13 was tabled in the way that it was rather than that it was better done in that way. I was merely referring to human nature rather than to any precise legal detail.

Lord Campbell of Alloway: My Lords, I am grateful to the noble Baroness. I was not trying to be provocative. I hope only that the point that I made would commend itself as reasonable, particularly in view of the fact that Amendment No. 14 is well drafted, is an integral whole and is wholly intelligible. In the circumstances, as something has to be done about Clause 11, which cannot stand anyway, it seems to me that it is far better—I am not trying to make a cheap point about this—to have a clear, well drafted clause which in its entirety is readily enforceable and readily understandable rather than Amendment No. 13.

The Lord Bishop of Hereford: My Lords, I come briefly to the defence of the Minister who seems to be having an unduly difficult time since we began Third Reading. It seems to me that he has made a sensible concession in Amendment No. 13 which is not only acceptable but is logically preferable to other phrases. Normally there will be no legal challenge. There is an exception made in Amendment No. 13 as drafted. We should accept Amendment No. 13 and regard it as an entirely acceptable form of words.

Lord Rooker: My Lords, I am grateful for the right reverend Prelate's support. I hate to contradict lawyers, but I believe that what the noble Lord, Lord Campbell of Alloway, said was incorrect.
	I could discuss at length why Amendment No. 14 is not as clear as Amendment No. 13. We think that a challenge by way of judicial review should be the only means for questioning referendum results. The proposals in Amendment No. 14 would open up a can of worms.
	I do not want to worry anyone unduly but I should point out that parliamentary draftsmen may carry out some technical "tidying up" of legislation before it is finally printed.
	Clause 11 is headed, "Exclusion of legal proceedings". I am told that that heading is appropriate as the function of the clause is to set out when legal proceedings cannot be entertained. Amendment No. 13 states:
	"The proceedings must be brought by a claim for judicial review.
	The court must not give permission for the claim unless the claim form is filed before the end of the period of six weeks starting with the certificate date".
	It could be argued that the heading is correct in those circumstances. However, if the heading needs to be changed, that can be done when the Act is finally printed. Such a change would not affect the Bill, or the final Act, in any way, shape or form. Sometimes the page numbering of a Bill is changed when it is printed as an Act. It is quite normal for such technical tidying up to take place. It may comprise only a change in the numbering of new clauses. Such new clauses may not necessarily be given a number in this House and may be inserted in the wrong place in the Bill. Parliamentary draftsmen put them in the correct place in the final Act. I do not want to make a big issue of that matter as it is not a matter that warrants making a big issue of.
	As I said I would, I have tabled an amendment at Third Reading to make the clause clearer. Clause 11 begins with the words,
	"No court shall entertain any proceedings"
	and then Amendment No. 13 lists exceptions to that. However, the exceptions comprise negative statements, as it were; that is, there is a reference to a six-week period and,
	"The proceedings must be brought by a claim for judicial review".
	Amendment No. 13 does not leave the door open, as does the wording of Amendment No. 14.
	I shall resist the temptation to speak to Amendment No. 14 at length as I was informed only within the past 30 seconds that Amendments Nos. 13 and 14 had been grouped.

Baroness Blatch: My Lords, I am sorry that the noble Lord has only just been informed of that. The note that we received from the Public Bill Office stated that it had made a mistake and that the amendments should have been grouped. It makes sense that the amendments should be grouped as they concern exactly the same issue. I should have started my remarks by saying that I speak before the noble Lord sits down and with the leave of the House.
	I am baffled by what seems to be a complete passing-over of the fact that Amendment No. 14 states:
	XA court shall only consider proceedings for questioning".
	The right reverend Prelate seemed to think that I had put that the wrong way round. In my amendment, one can make a challenge only if certain factors occur, and those factors are set out very clearly. In a way, we are dancing on the head of a pin, because my argument was that I thought the amendment plainer and more straightforward. It would also be encouraging for people who had a concern that something had gone wrong, as they could look straightaway and see whether they fell into the categories and could proceed.
	I have to say that I do not know of a single example of what the noble Lord mentions in relation to a heading such as "Legal challenge". I accept what he says about mistakes, if pages need renumbering, or if there is a reordering of words in a paragraph. However, if "Legal challenge" were completely changed in the printing of a Bill, I would find it extraordinary. In this House and another place, hours are spent debating whether to change titles of clauses by amendment. Titles are voted on one way or another. The idea that we would pick up the Bill when it goes to print again and suddenly find that headings of various clauses would be different is rather worrying.

Lord Rooker: My Lords, that was an intervention. I do not want to make a meal of the subject but, in 27 years in another place I have never known any amendment to be made to the side-title of a clause. Parliamentary Counsel decide them, not Members of Parliament. The side-titles to clauses are not part of the Bill, but part of the work of the Parliamentary Counsel. If the House has made a change to a clause and Parliamentary Counsel think that the side-title needs changing, it is fully within their competence to do so before the Act of Parliament is printed. Frankly, the nods that I am getting from those other than the noble Baroness, Lady Blatch, satisfy me that I am absolutely correct on that.

On Question, amendment agreed to.

Baroness Blatch: moved Amendment No. 14:
	Leave out Clause 11 and insert the following new Clause—
	"LEGAL CHALLENGE
	(1) A court shall only consider proceedings for questioning—
	(a) the number of ballot papers or votes cast in a referendum held in pursuance of an order under section 1 as certified by the Chief Counting Officer for the referendum or by a counting officer, or
	(b) the number of ballot papers or votes cast in a referendum held in pursuance of an order under subsection (2) of section 2 as certified by a person appointed for the purpose in pursuance of an order under subsection (9) of that section, if—
	(i) the proceedings are brought in accordance with this section, and
	(ii) a claim if filed within six weeks from the date on which a certificate in relation to subsection (1)(a) or (b) is issued by the Chief Accounting Officer, counting officer or other person mentioned in subsection (1)(b).
	(2) If there is more than one such certificate for a referendum, the date on which the last certificate is issued should apply."

Baroness Blatch: My Lords, I beg to move.

Lord Strabolgi: My Lords, is it in order for Amendment No. 14 now to be moved? The House has decided to amend the clause. Is it now in order to remove it?

Baroness Blatch: My Lords, it is a good question. I checked with the Clerk whether moving the amendment was in order, and I was advised that it was.

On Question, Whether the said amendment (No. 14) shall be agreed to?
	Their Lordships divided: Contents, 120; Not-Contents, 158.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 17 [Implementation of recommendations]:

Baroness Hanham: moved Amendment No. 15:
	Page 12, line 5, at end insert—
	"( ) in any such referendum, the proportion of those actually voting for the proposition is equal to, or greater than, the proportion given in Schedule (Proportion of electors required to secure a majority) for the relevant percentage of the eligible electorate certified as having voted,"

Baroness Hanham: My Lords, we return to a matter discussed on Report and extensively at previous stages. It is the desirability of ensuring that there is not only a reasonable turn-out for the elections but also a sufficient majority in favour of what is, after all, a significant constitutional change—the breaking up of England into regions and the abolition of the county councils.
	On Report we put forward a schedule for addressing the problem but recognised the point made by the noble Lord, Lord Monson, that the wording leading to a possible difficulty over deciding whether a threshold had been reached was ambiguous. We believe that the amendment to the schedule put forward today now makes clear where and how a threshold will be achieved.
	Most reasonable people would say that changing the constitution of the country is no small matter and that, even if there is disagreement among us as to the value of such changes, there should be no disagreement about the significance of what is being proposed.
	The county councils have been the mainstay of local government for centuries. People do care about them. I am sure that noble Lords, like me, saw the letter in the Sunday Telegraph yesterday from a correspondent who was incensed because, in a previous edition, Barnsley had been located in Lancashire instead of Yorkshire. She minded and there will be thousands, if not millions, like her. Representation will be limited and at a distance far more remote than the county councils. The reorganisation of local government will in itself have a major impact on how services are run and by whom.
	As we said at the previous consideration of the Bill, regional assemblies will potentially weaken our central Parliament, not because very many responsibilities will be passed down but because there will be more room for the Government to disclaim any liability for those which are. I refer to the Scottish/London syndrome where questions asked in this House and in another place are not answered on the basis that the Government have ceased to be the responsible body.
	If the Government are confident of their ability to persuade the voters that these changes are necessary, then they must accept that a vote in support on a small turn-out of voters will not be sufficient to gain acceptance for these proposals. I beg to move.

Earl Peel: My Lords, I support my noble friend on this amendment, as I did at the previous stage. I do so for the very sensible reason that there can be no doubt that the potential implications of regional assemblies in terms of their impact on local government will be enormous. As my noble friend said, county councils, which have served this country so admirably and so well, could be vanquished for ever.
	I believe that the decision to allow such fundamental changes to take place, not to mention the enormous political implications, simply cannot be taken this lightly. It seems to me—I know that I speak for many in my part of the world in North Yorkshire—that it will be not only reasonable but, indeed, essential for a level of electoral threshold to be imposed in order to inject some genuine credibility into such basic and fundamental changes. I do not know whether technically this amendment is the right one but I know that my noble friend has taken much advice on this matter and I have full confidence that she will have got it right.
	At Report stage, the Minister accused my noble friend Lady Blatch of being a,
	"two nation Tory . . . [who] sees the two nation split as urban and rural".
	With the greatest respect to the Minister, I believe that that is nonsense. My noble friend was rightly speaking for those of us who care passionately about local accountability, which has for so long been a fundamental ingredient of our whole democratic process and must not be given up lightly. The Minister said:
	"We are trying to build one nation. That is why we want a regional referendum, not one carried out on a district basis, setting off one part against another".—[Official Report, 8/4/03; col. 177.]
	But that is precisely what will happen because many, particularly in rural areas, in effect will be disenfranchised.
	How on earth can local accountability be enhanced by a system that allows for one regional assembly member to represent—I do not know how many it is—160,000, 200,000 or 250,000 constituents, compared with the present figure of 60,000? That is four or five times the number of constituents of a Member of Parliament. In my view, that is not local accountability. How can local accountability be enhanced when the whole decision-making process is moved to a centre which has no ties or identity with so much of the region in question?
	My local newspaper, the Darlington & Stockton Times, commented recently:
	"The one thing that has been established is that the people of North Yorkshire believe that they alone should be allowed to decide on the shape of local government in the area".
	The newspaper went on to raise what I regard as another important and perhaps often forgotten point. It said:
	"Apart from the loss of local democracy, the economic loss the county town would suffer would be a body blow".
	Finally, it said:
	"In this part of the county regional government does not mean more relevant and accountable government. It means a more distant administration—and a Labour one".
	Surely that is the point. That is what really lies behind the Government's referendum and regional government plans. It is—if I can put it as bluntly as this—straightforward, unadulterated political gerrymandering. It does absolutely nothing to enhance local democracy and local accountability. Consequently, I hope that people will realise before it is too late the damage that it could do to the whole political and democratic process in this country.
	I suppose that if regional assemblies were to be accompanied by genuinely devolved decision-making powers, there could perhaps be more of an argument in their defence. However, as the noble Lord, Lord Greaves—I see, and I am not surprised, that he is not in his place—has already demonstrated by his comments and indeed his actions during Report stage, what the Government are actually proposing is nothing much more than a shuffling of the local government pack at the expense of well-established, highly regarded county councils for blatant political gain, with no extra powers for the local administration. That is why it would be wrong to make comparisons with Scotland or indeed with Wales.
	At least Amendment No. 15 brings a degree of credibility and indeed accountability to the proceedings. It brings a safeguard, thus ensuring that a low turnout with a small majority would not be allowed to hijack the present system which has served us so well for so long. I should hope that, regardless of political persuasion, everyone will appreciate the damage that that could inflict on the political and democratic process in this country. This amendment goes some way towards addressing that. I urge noble Lords to support it.

Lord Campbell of Alloway: My Lords, very briefly, I wish to support Amendment No. 15, not only for the reasons that have been given, but in particular because a low turnout makes a mockery of any pretence at a democratic process. There comes a point when it makes a nonsense of the whole thing. The whole thing here is setting up regional government. It is a very important step to be taken and one which should never be taken on a low turnout. Amendment No. 17 provides the machinery of safeguard against a low turnout. As my noble friend has just said, he has not been into the mechanics of the machinery—and indeed nor have I. However, I am wholly satisfied, and I am sure that your Lordships will be, that due care has been taken to protect an acceptable minimum which would square with any concept of a democratic process. I support the amendment.

Baroness Hamwee: My Lords, Amendment No. 15 is ingenious but confusing. It might add less to the confusion if noble Lords did not assume that the counties will be abolished. We do not know what the Boundary Committee will put to local people for their choice. One of the options may be a unitary on the boundaries of the current county. In any event, the loyalty that one has to one's county and to one's roots is not necessarily destroyed by a change of administrative arrangements. I am sure that the Conservatives would say that. I am also sure that many people still regard themselves as living in Berkshire although there is no administrative county of Berkshire. I regard myself as a Lancastrian although I come from Manchester and they are separate administrations.
	Our main objection to Amendment No. 15 is that it would do nothing to encourage participation in the political process and would do everything to send the message, "If you do not agree, or if you do not much care, or if it is a bit of trouble to go out and vote, stay home". It does not send the message, "Engage in the issue. Find out what it is about. Talk to people". The message is, "Stay home". I want no part in what would effectively be a call to those who have that precious democratic tool, the franchise, not to use it.
	In St Stephen's Hall there is a statue of a previous Viscount Falkland and his sword is broken. A suffragette chained herself to the statue to protest that women should have the vote and the only way to release her was to break the sword. People have died for the franchise. They did not die for the right to abstain. Yesterday I met someone who has spent a good deal of time in Zimbabwe. She talked about friends who had queued for three days to vote but were then denied the vote. I put the point dramatically because I feel it strongly. I think that it is a dramatic point of principle. By all means, go out and campaign for a "No" vote in the referendum, but do not campaign for or send the message, "Don't vote".
	There is a very good reason why there is almost no precedent for a threshold. It is because votes, not abstentions, are what democracy is about. I am sure that many noble Lords will have been campaigning in the current elections. I would be surprised if noble Lords on the Conservative Benches have not been saying on the doorstep, "If you do not like what is being done by the current local council, the Scottish Parliament or the Welsh Assembly, go and vote for other representatives. You cannot complain if you do not vote". We regard the proposal as anti-democratic and we want no part in it.

Lord Stoddart of Swindon: My Lords, there is a precedent. It was set in 1979, in the Scottish referendum on devolution. In fact, the barrier was set at 40 per cent of the electorate rather than 40 per cent of those voting. Consequently, a threshold higher than 50 per cent had to be achieved. In the case of the Scottish referendum it was not achieved, and we did not have Scottish devolution until the last Parliament. So there is a precedent for this, and I think that it is probably a good one, although perhaps it was rather a blunt instrument. Amendment No. 15—I do not want to be long about this—seeks to hone that 40 per cent blunt instrument.
	Democracy is just as much about disinterest as anything else. People in a democratic society are entitled to be disinterested in the franchise. The amendment ensures that as disinterest increases, the barrier to imposition of the minority view is increased. That is important, and it is not good enough when perhaps only 25 per cent of the electorate have voted that a simple majority should be able to carry a serious constitutional change.

Lord Waddington: My Lords, I do not believe that radical constitutional change should be brought about in this country on a low turnout by a narrow majority of people. There should be a clearly demonstrable surge of support for the sort of constitutional change that is envisaged by the Bill. It is a terrible Bill because it sets about undermining the very careful balance that we now have in local government. The county councils are a living demonstration of the fact that we have machinery to ensure that the countryside interest is properly acknowledged and represented. I have said many times before that one only has to look at what would happen in the North West to see what an abominable proposal this is. There is no way that there can be an elected body for the whole of the North West region without ensuring that that elected body would be dominated entirely by urban interests. That is the mathematics of the matter. One only has to look at how the concentration of votes is in the two conurbations of Merseyside and Manchester. No one in this place can fail to acknowledge what a radical constitutional proposal this is, and how damaging it may be. Such a change should not come about on a tiny turnout by a narrow majority of voters. The amendment aims to avoid that abomination.

Lord Dixon-Smith: My Lords, I regret the Bill and I support the amendment on slightly different grounds from those that have been stated so far. The reality is that the continual corrosive effect over many years of structural legislation to change local government has immensely damaged it. The local government that I knew when I was first elected many years ago no longer exists. The structure is not the same.
	However, we are not discussing that. One can very much regret that and one can regret future change, but we are discussing the use of referendums and whether they should have floors below which no action is possible. The Government bring in a referendum when it suits their convenience, rather than legislating directly and taking total responsibility for their actions. They want to and intend to bring about a change, but they do not wish to be held responsible for it. They want to be able to say, "The local people decided this, so we will introduce a referendum. The referendum may not go the way we want, so we will have another in seven years' time, and we will leave the question open forever. We will keep rolling the question forward until the public comes up with the answer we want".
	They could come up with it on a very low turnout because it would suit the Government's convenience. I agree with the noble Baroness, Lady Hamwee, that we do not wish to discourage people from voting. An abstention could be taken as a general acceptance of the proposition, or a statement of satisfaction, even if the reality is that it is a statement of no interest and "don't care". It is also probable that turnout in the planned referendums will be low because the majority of people, having been so battered over local government structure for so long, no longer care about it any more.
	The problem is that the Government are using the public to take responsibility that ought to be Government's responsibility. Putting a floor into the referendums would mean that people would have to come out and take sufficient interest in the matter. It should have been done in the Scottish referendum. The noble Lord, Lord Stoddart of Swindon, has mentioned the first Scottish referendum. I well understand why the Government are frightened of floors because they were beaten by the floor that they established in that referendum. On constitutional issues of major change it is right that there should be a floor. The floors in the amendment are, if anything, weak, but they are better than nothing—and as such I support them.

Lord Corbett of Castle Vale: My Lords, I assume that there are noble Lords opposite who are going to go out on Thursday in the Conservative cause. When the counts are made just after ten o'clock, and they find there has been a very low turnout, although they have won the seat, they will say to the returning officer, "No, that does not count".
	I agree with the noble Baroness, Lady Hamwee, who spoke for the Liberal Democrats, that the last thing that any of us should have a hand in is to give people the impression that non votes count as much as votes. I find it extraordinary. I agree with the noble Lord, Lord Dixon-Smith to the extent that the turnout for local government elections is in general appallingly low. Seats change hands in the City of Birmingham on a turnout of 12 per cent. I find that astonishing and appalling. It is no good blaming the electors for that. The political parties are supposed to be the experts. Those of us at each end of this building are supposed to have some experience in explaining to people how to exercise their democratic right. All of us are guilty of failing abysmally if there is that kind of turnout.
	I also wish to challenge what the noble Lord has said. The Government do not want a particular result from any ballot on regional assemblies. That is why it is being done this way. There are many criticisms to be made of this paving Bill, but if the Government want to establish regional assemblies the length and breadth of England, willy-nilly behind the backs of the electors, they have the votes to do so down at the other end of this building. Where soundings indicate that there is enough interest to have a referendum and to say to people within a region—we have had arguments over what constitutes a region—XDo you or do you not want this form of regional government?", and the price is this, that or the other, I see nothing wrong with that at all.

Lord Dixon-Smith: My Lords, I hear what has been said, but if the Government did not want this change, we would not have the Bill.

Lord Corbett of Castle Vale: My Lords, I am sorry that the noble Lord has the issue around his ears. It is just not the case. The whole purpose of the Bill is to give people within the regions the opportunity to express a view on whether they do want regional assemblies or whether they do not. That is what it is all about. It is not seeking to impose that. I have strong views, and I will come clean with your Lordships. I am delighted that the consensus in the West Midlands is that they do not want to be in the first wave of those who want a referendum on whether or not to establish a regional assembly. I am not alone in Birmingham and the West Midlands in my belief that there is little or no interest in that at the moment. Whether that could be or should be built up is another matter. However, the answer to that depends on the people living in that region and not on Ministers or Whitehall.

The Lord Bishop of Hereford: My Lords, rather to my surprise, I rise wanting to support the amendment for the reasons well explained by the noble Lord, Lord Stoddart of Swindon. It is a modest safeguard against the imposition of a minority view in the radical change to the way in which local government is organised. I do not agree with the noble Lord, Lord Corbett, that it is comparable with local elections in the city of Birmingham; it is not.
	We are entering a completely new world and like the noble Lord, Lord Waddington, I am deeply concerned about areas where there are huge tracts of empty countryside with relatively few people. That is true of the North West, the North East and the West Midlands. Hereford and Shropshire are the most sparsely populated counties in England, but the West Midlands is completely dominated by the Birmingham, Wolverhampton, Stoke-on-Trent/Potteries conurbation.
	The amendment represents a modest way of ensuring that a small vocal urban interest group is not in a position to impose its will on a large area where the majority has a different interest. It is a strange mechanism and I am not sure whether I approve of it, but in this case it is probably a wise safeguard.
	I believe that the noble Baroness, Lady Hamwee, has misread its implications for the electoral process. I do not believe that if it were to be introduced it would say to people, "Don't bother to vote". In fact, it would be saying the opposite: "You must vote if you want anything to be achieved". There has been a complete misunderstanding of the effect of such a provision if it were to be introduced.
	I find myself wanting to support the amendment because I believe that it is a valuable and necessary safeguard if we are to take this radical step in the way in which local Government is arranged in this country.

Lord Dixon: My Lords, I shall speak against the amendment. If the Bill were the first to be introduced to devolve power from Parliament, I could accept the points that have been made. However, this is the fourth Bill: we had the London, Scottish, Welsh and Northern Ireland Bills and no such pressure was brought to bear on them.
	It is interesting to note that when we first debated the Bill the Conservative Opposition stated that it gave no powers to the regions and that it was useless. They said that neither the Government nor the local authorities were giving up any powers. Now it has become a major constitutional Bill and they want thresholds. I say to my noble friend Lord Stoddart that the threshold put on the Scottish Bill in 1978 delayed Scottish devolution for 12 years.
	I hope that the amendment will be rejected. I see no reason why, if the people in the North East want a regional assembly, they should be tied to thresholds when Scotland, Northern Ireland, Wales and London were not.

Lord Campbell of Alloway: My Lords, before the noble Lord sits down, I respectfully ask him whether he would accept that, if the Government did not want to have regional assemblies, they would not have introduced the Bill.

Lord Dixon: My Lords, my noble friend Lord Corbett has just explained that. If the Government were adamant that they wanted regional assemblies they could introduce them without going through the process of referendums. They are having referendums in order to ask the people in the regions whether they are agreeable to regional assemblies.

Baroness Blatch: My Lords, technically that answer is right. However, a number of Ministers are on record as saying that they would like regional assemblies. Therefore, we know that the mechanisms for obtaining them give people a say locally.
	I rise to make only one small point in response to the noble Baroness, Lady Hamwee. She accused those of us on these Benches—indeed, anyone who has spoken in favour of the amendment—that somehow or other we have made the assumption that county councils are more vulnerable than district councils. We stand by the belief that county councils are more vulnerable.
	It is true that if the counties of Cornwall and Devon were to remain unitary authorities they would first have to subsume all the local powers of district councils because they would become the unitary authorities. The local government for people throughout the whole of Cornwall and Devon—and this applies to other regions in which there are large country areas—would be distant. The region would be run from Bristol but the county areas would become the county councils and would deal with the pavement politics that are dealt with by district councils.
	They are most vulnerable. In Cambridgeshire, where I come from, if the counties were to become the unitary authorities they would have to subsume powers and considerable powers would move upwards to the county councils, although we have been told time and again that powers will not move upwards. They would lose all their local authorities throughout the eastern region.
	At the beginning of our debates, the noble Baroness, Lady Scott of Needham Market, and the noble Lord, Lord Greaves, expressed real reservations about the survival of county councils. When it comes to looking for the size of regional authorities, I suspect the likelihood will be that counties will go and many of our district councils will be merged into becoming larger district councils which will form the unitary authorities. If Berkshire county council had become the unitary authority—the example given by the noble Baroness, Lady Hamwee—a serious amount of local government would have been lost in Berkshire.

Lord Rooker: My Lords, my brief and views have not changed on this issue—and this is the third or fourth time we have addressed it. It appears to be implicit in the amendment that a turnout of as low as 5 or 10 per cent is acceptable. The amendment provides that on a turnout of 30 per cent there must be a 66 per cent majority. Intellectually, it is obviously the case that the Front Bench opposite will be prepared to see a turnout as low as 5 per cent and still get a result. Therefore, there is nothing intrinsic about the figures we have in front of us.
	The noble Lord, Lord Stoddart of Swindon, referred to the first Scottish referendum in which there was a figure of 40 per cent. If that figure was not reached, no matter what the vote—and in that case there was a majority vote in favour of devolution but not a 40 per cent turnout—the proposal would fall. It was deemed that anything less than that and it would not work.
	Yet it is envisaged in the amendment that on a turnout which could be anything below 30 per cent a result would be achieved provided that the majority of those voting was 66 per cent. Therefore, let us not hear the argument that there is something holier than thou in the amendment. That is not the case.
	I do not want to labour my next point because only two or three Members mentioned it. The counties are not affected and the reference to Berkshire is a good example. The lord lieutenancies and so forth will remain, whatever happens. I accept that the county councils have a different governing structure, but once or twice people slip it in as though one is the same as the other. That is not the case. We are not ripping up England's history or destroying England's county structure. The cricket teams will remain—including Middlesex, I suspect—whether or not there is regional government.
	I must make another point just because of the tales of woe and fear implicit in some of the speeches. As I said in Committee and confirmed on Report, the earliest conceivable date on which an elected regional assembly could be up and running is July 2006—the other side of a general election. It will not happen this side of any proposed date for a general election, subject to a referendum, or referendums, next autumn. That point must be taken on board and I have repeatedly made it clear. I have given the timetable previously, indicating that it will not be possible to have an elected regional assembly up and running before July 2006. We are therefore not rushing this matter.
	If there had been the will, there could have been a Bill setting up regional assemblies. There is no question of that. The noble Lord, Lord Dixon-Smith, said that the Government are unfair; they are asking the people to decide when it is their job. In this case, we do not believe that it is.
	I do not accept that there is an intrinsic argument about turnouts giving power. I freely admit that over many years my personal preference has been in favour of PR systems. I used to find it difficult to explain to people in this country and abroad how we in this country could have a huge majority in Parliament—perhaps 142—when in three consecutive general elections the number of people who voted for the governing party was never more than 43 per cent. There are many paradoxes in our electoral system which we must sometime learn to live with.
	An interesting analogy has been given in relation to the counties. As has been mentioned, currently we have one existing single-tier county council, which is Herefordshire. That is pretty rural. I suspect there is no doubt that it is more rural than anywhere in the country—

Baroness Blatch: It is very small.

Lord Rooker: You see, they are making up the rules as they go along. It is because it is very small. It abuts (does it not?) Wales where the Conservative Party abolished the county councils. I shall not take lectures from noble Lords opposite about the abolition of county councils. My knowledge of history is not good but county councils were abolished in Wales. Wales is predominantly a rural country; there is no question about that. Clearly, where it abuts Herefordshire—I do not know this in great detail—there are district councils because that is the structure. So far as I can see from my own knowledge, which is scant, it works quite well having district councils in a rural area on one side of the border and county councils in a rural area on the other. I accept that there is a difference because of devolution in Wales. However, the idea that there is one stamp which works, the status quo, which is what the Conservatives seek to preserve because they are opposed to the Bill, I do not accept for one moment.
	The arguments have not changed. I agree that people want to put in barriers. As I said originally, there is unfairness where it can happen that people who do not vote make the decision. It is worse than that. One can positively abstain and affect the decision. That is wrong in a democracy. My noble friend Lord Dixon made clear that we are not saying that the regional assemblies are regional government or home rule for the regions. There will be no new powers, no new money and no new tier of government. This will be a different way of scrutinising the vast amounts of government expenditure—billions of pounds—and decisions made at a more local level than here in Westminster. However, given the precedents of Scotland, Wales, Northern Ireland and, indeed, London, it would be outrageous if we were to put in barriers for English regional assemblies which were not there for the other parts of the United Kingdom when powers were devolved to them. That would be almost impossible to explain and impossible to justify.
	At this last minute, at Third Reading, there are no new arguments. I have not heard any today and I do not have any to put. Therefore, I hope that the House will reject the amendment.

Baroness Hanham: My Lords, there are no surprises left in these discussions. Indeed, the fact that the Minister has decided not to support the amendment is no surprise either. As he said, we have discussed these matters pretty thoroughly and fundamentally all the way through the passage of the Bill. However, it is extremely interesting that he reiterated the fact that this regional government will be simply a scrutiny area. That is what he said, so that is what I presume he means. Therefore, the only powers that any elected regional assemblies will have will be to scrutinise. We have discussed that before. The fact is that this will be a completely toothless tiger.
	However, I do not think we can assume that that is where the Government will leave the matter. The electorate at least needs to be sure—I hope that ultimately it will be sure—what it is voting for. It is clear that it will not be sure under the current circumstances. There is nothing in the Bill to indicate what it is voting for except what we have managed to pick apart and pick out during this very long process. Whatever the Bill does it divides up England into a series of administrative units, administrative regions. There is no point in the Minister shaking his head. That is exactly what it does. If it does not do that there is not the slightest point to all the efforts put in by the Minister and everyone else during the passage of the Bill.
	The shake of the head, the Minister will say, is because it will be for the electorate to decide whether it wants such an administrative region. If the electorate wants it, our view is that it should demonstrate that. Whether it be the first or last to take a decision, it should demonstrate that it wants this new beast in a form and number which is sufficient to indicate support for it.
	I am extremely conscious that the London local government, the GLA, was elected on less than 20 per cent of votes. That is, about 16 per cent of voters in London physically wanted an elected assembly. It is right that the schedule I have produced would still envisage the possibility of less than 30 per cent. However, it would state that there then had to be a reasonable majority of that 30 per cent or under to ensure that there was at least an indication of majority support of those electing and taking part.
	This is not a recipe for encouraging abstention. From this side of the House there will be urgent efforts to ensure within the regions that a no vote is encouraged. That is what democracy is about: voting in favour or voting against this devolution. If people choose to abstain, they are entitled to do that. However, we shall want to encourage them, as will everyone, to have a view and to make it known. We still believe that there should be some criteria, more than just one vote, which would enable this new form of administration to be elected.

On Question, Whether the said amendment (No. 15) shall be agreed to?
	Their Lordships divided: Contents, 137; Not-Contents, 150.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Hanningfield: moved Amendment No. 16:
	Page 12, line 5, at end insert—
	"( ) a majority of those voting in each county area voted in favour of an elected regional assembly,"

Lord Hanningfield: My Lords, we reach the last amendment in the debate at Third Reading. I make no apologies at this stage for repeating arguments, some of which were made in the debate on the previous amendment.
	The Government have always insisted that county and district councils cannot exist beneath an elected regional assembly. We have heard time and again that two tiers of local government beneath an elected regional assembly would represent one tier too many.
	On the basis of that detailed and rigorous argument the Government plan to launch into a costly and highly risky local government reorganisation. It is costly because the reorganisation of local government does not come cheap. We are talking about spending billions of pounds not on the establishment of elected regional assemblies, not on improvements to public services, and not even on streamlining bureaucracy.
	The local government reform that took place in the early 1970s led to an increase in staff of nearly 5 per cent and spiralling costs. Those costs were met by local people. The evidence from the last round of local government reorganisation suggests that upwards of 30 per cent of the costs of reorganisation were met from local authority reserves and revenue accounts. I know that in Essex the establishment of unitary authorities in Southend and Thurrock was very expensive. The Government plan to replace excellent authorities with new authorities. Why do they want to do that? It is not to secure better public services or to cut the cost of delivering public services, but because their view is that one tier is one tier too many.
	Who will vote for the abolition of these authorities? It will not be the people affected. In many parts of the country, people who already live in unitary authority areas will effectively have the power to secure the abolition of county and district councils.
	During the previous debate the noble Baroness, Lady Hamwee, said that there might be a unitary solution for counties. However, I want to repeat what my noble friend Lady Blatch said. Unitary counties are not county and district government. In a large geographical area, people are well represented by a county and district system. That gives local people the chance to take local planning decisions and provide their own recreation services; it gives the county a strategic view over a large geographical area, such as Northumberland. To have only a unitary choice is no real choice. For example, in the North East 69 per cent of the population already lives in unitary authority areas, so the residents of county areas are outnumbered by 2:1.
	Let us be clear. The effect of the Government's previous amendments, passed in collaboration with the Liberal Democrats, is not to provide voters with power to determine whether their local authority stays or goes. They will all go. It simply gives people a choice of how their local authorities go. The decision whether local government reorganisation takes place remains tied to the decision on elected regional assemblies. It therefore remains the case that people living in large towns and cities will have a veto over how local government should operate in rural areas.
	It is unfair that citizens affected by reorganisation do not have the choice about whether it goes ahead. Citizens in two-tier areas, as service users, will experience first-hand the upheaval and disruption of creating new unitary authorities. They should have some right to determine whether a single tier of local government will serve their area more effectively.
	Ultimately, the Bill is about holding the referendums; it is about giving people choice. The amendment would mean that if the majority of people in a region wanted a regional assembly they could have one. At the same time it recognises the legitimate concerns about service disruption that people living in two-tier areas might suffer. It enables them to retain their existing authorities if that is what they wish. The amendment provides real choices for people in rural areas to be treated equally to people in urban areas.
	I have said previously that many people who participate in these debates do not understand the problems of rural areas and rural representation. If there is deprivation in this country, it is often in rural areas. To deny them two tiers of local government is to do them a great disservice.
	If the Government are really in favour of choice, they will accept the amendment. I know that it is late in the day, but there is still a chance for the Government to think again. I make what is perhaps the last plea for the people of Northumberland and of Durham—perhaps of Cumbria, Lancashire and Cheshire—to have that choice of two-tier local government, which has served them so well and which most other countries in Europe, the United States and the rest of the democratic world, retain. I beg to move.

Baroness Hamwee: My Lords, it is the nature of any democratic decision that the voting base must be defined. There are sometimes choices. Especially where a vote will have more than a single effect, it is almost impossible to satisfy everyone about the choice of that base. I am not at all surprised by the Conservative amendment. To them, regional government is not a good thing in principle. It is not part of the equation that they would apply. We on these Benches believe in principle that it is a good thing—subject, obviously, to the detail; we have spent much time discussing powers that are not part of the Bill but which we regard as important.
	It is now proposed that county areas are to have a choice about their future structure—albeit limited to unitary structure. As I have said today and previously, we would much have preferred the retention of two-tier government where people want it, but this is the best offer available. We do not regard the provision as the imposition by other parts of the region in as extreme a fashion as was painted. The noble Lord, Lord Hanningfield, talked about a veto, but it is not a veto over local government as I would normally understand the term. It is giving people a choice locally that they have never previously been given.
	We would view with great concern one county area being able to block a majority vote for regional government taken across the region—or, indeed, a majority in every other county area in the region. As I read the amendment, that is what it would amount to, so we cannot support it.

Lord Pearson of Rannoch: My Lords, I was going to fire a parting shot at this dishonest Bill under the Motion that the Bill do now pass, but I am advised that such interventions are now discouraged. As your Lordships were spared my interventions on Report, I should say in supporting the amendment why I think that the Bill is dishonest and why, therefore, it must be a good thing to have a majority of people in a county supporting a referendum, if one is to take place.

Baroness Nicol: My Lords, will the noble Lord give way? He is not in order unless he speaks to the amendment at this stage.

Lord Pearson of Rannoch: My Lords, I am grateful to the noble Baroness. If she had been patient for a moment longer, I was explaining why I am speaking to the amendment. Amendment No. 16 provides for a majority of people voting in each county area—

Lord Stoddart of Swindon: My Lords, I am most obliged to the noble Lord for giving way. He said that interventions on Bill do now pass are discouraged. I do not know who is discouraging him, but whoever it is does not understand that it is the tradition of this House for Members to be able to speak on Bill do now pass. I assure the noble Lord that this Member intends to do so.

Lord Pearson of Rannoch: My Lords, yet again I am most grateful for that intervention, but having consulted the Table, which is now advising the Government Bench, I find that unfortunately the rules have changed during the past year or two. The latest Standing Orders, or whatever they are called, discourage one from speaking on Bill do now pass.
	To return to the point made by the noble Baroness, Lady Nicol, what I have to say fits with the amendment—which may be for the convenience of the House, because of the time saved—because it must be true that if a majority of people vote for something, it is likely that they will understand it. My point in support of the amendment is that the Bill, and especially the question to be put to people proposed by the Bill and supported by the Electoral Commission, is likely to ensure that they do not understand for what they are voting.
	The Minister came near to misleading the House about the European content of the whole exercise when, on Second Reading, he said:
	"We are not implementing some plan or plot hatched up by Johnny Foreigner to . . . in some way channel funds into different regions".—[Official Report, 20/2/03; col. 1251.]
	That wording is not precise, but I think we get the gist of the Minister's statement: that the Bill, and the whole exercise of regionalisation, have nothing to do with the European Union's project for the Committee of the Regions.
	On Second Reading, and especially in Committee, the Minister did not confirm—I should be grateful if he would do so at this last opportunity—that paragraph 4.31 of the White Paper, Your Region, Your Choice, which, amazingly, I notice, is subtitled, "Revitalising the English Regions", which must be unlikely, states clearly that the assembly, if it is voted for,
	"will take over the role currently performed by Government Offices on structural funds (including the European Regional Development Fund, the European Social Fund and rural programmes) for any structural fund expenditure for future programming periods".
	In other words, regional assemblies will take over the role of central government in negotiating with Brussels for the money that they will be allowed to spend.

Lord Peston: My Lords, excuse me for interrupting, but the situation is getting beyond a joke. My noble friend Lady Nicol offered the noble Lord guidance on what many of us who have been in the House for many years believed we were supposed to do at Third Reading. By any standards, the noble Lord's speech bears no resemblance to any of the guidance to which many of us have stuck for many years. As the noble Lord is aware, I get enormous pleasure and interest from his speeches. But, on occasion, he ought to show respect not merely to noble Lords but to his own Front Bench colleagues, who moved what we were told was a very serious amendment. He is deviating from it to a degree that my mathematics does not even enable me to calculate. The House is so far from being in order that, if points of order could be raised here, I would raise one.

Lord Pearson of Rannoch: My Lords, the noble Lord's mathematics may for once have run away with him. I am about to return very briefly to the point, but it would be quicker if I were not interrupted. The question that the Electoral Commission proposes to put to the people is whether there should be an elected assembly, et cetera. If an elected assembly were to be established, it is intended that it would be responsible for a range of activities currently carried out mainly by central government bodies, including regional economic development.
	The amendment must be right because, if enough people understand that included under the Bill is the cession to Brussels of regional development, there is a very good chance that they will vote against it. I trust that the noble Lord, Lord Peston, and the noble Baroness, Lady Nicol, will see that my intervention is rooted in the amendment. I thought that they would be grateful that they did not get this or a longer peroration at the debate on the Question whether this Bill do now pass. I support the amendment.

Baroness Blatch: My Lords, if the noble Baroness, Lady Hamwee, will forgive me, I shall refer to a point that she made on my noble friend's amendment, which I support very strongly. She said—I paraphrase—that they would prefer it if local government were not asked to pay the price for regional assemblies. That is what the Liberal Democrats are voting for. They have supported the Government in establishing regional assemblies, which will not even have regional government. The Minister told us that there would not be regional government, that there would be neither new powers nor new money, and that local government must pay the price for it. It is all very well to say, "This is what we would not like"; those words read well on the page. But, when one goes into the government Lobby to vote for regional assemblies with no new money, no new powers and in favour of local government going through wholesale constitutional structural change, you must live by what you vote for.

Lord Rooker: My Lords, further to that little political homily, you are also voting for the opportunity to scrutinise and to question billions of pounds of current public expenditure where there is no opportunity at regional level for local representatives to raise issues. It is allegedly done in this place. As a Parliament, this place is a farce in terms of controlling or scrutinising at that level of detail. Our function is different. Therefore, there is a role for voting for that. Nobody will accuse me of overplaying the role of elected regional assemblies. But I will not underplay the different kind of function that they could carry out, which does not exist at present—finding out and perhaps changing priorities in some of the budgets at that level.
	Although there will be no new money, there is already billions of pounds of public expenditure. I have always said, and everybody knows it, even though the meaning has been twisted, that there is no new money just for having an elected regional assembly. But people would not pass up lightly the opportunity to get to grips with, and to look at, priorities in a region for existing expenditure of billions of pounds.
	The noble Lord, Lord Hanningfield, spoke with his customary good sense and experience of local government. I accept that he speaks with vast experience, particularly in how he attacked the former Conservative government for their local government reorganisation. That was very brave, and I hope that the noble Lord will continue on the Front Bench as a result of it. But, in some ways, he was arguing for the opportunity to have three tiers of government under the national framework. That is the implication of leaving the door open for three tiers of government. As I have said repeatedly, I do not believe that if we had come forward with a proposal leading to an extra tier of government there would not have been a massive national campaign by the Conservatives, the CBI and business about extra layers of government and more bureaucracy. Now I will have that denied, will I?

Baroness Blatch: No, my Lords, the noble Lord is contradicting himself. He has said emphatically in this Chamber that it is not regional government. If the noble Lord is saying that there would be three tiers of government, it is a very different kettle of fish from what he has been proposing at four stages of the Bill.

Lord Rooker: My Lords, the noble Baroness is playing with words, as she has done today. Normally, she is a little gentler, but today she has gone over the top. I shall stop being friendly towards her in future. It is known what I mean by three tiers. I have said that they would not involve service delivery—I do not argue otherwise. There would have been a large national campaign; we were not prepared to have that political argument.
	The price for elected regional assemblies is single-tier local government. As I said at Second Reading, if that were not the case, we would not proceed with the Bill. On offer is elected regional assemblies with a single tier of local government beneath, not two tiers; otherwise, we would not proceed with the Bill. That is not a threat; it is not an argument against Parliament. Parliament can decide what it wants. But it is a government Bill, and we would decide whether or not to proceed with it.
	I must make absolutely clear what is on offer in this amendment. It is fundamental in that it is designed specifically to frustrate the Bill. It is also a little unfair. It was not quite put this way, but the majority of the population of four regions is rural, and in four the majority is urban. But I accept that normally soundings show that an overt desire for regional elected assemblies is expressed mainly in areas with single-tier authorities. But if this amendment were accepted, a region with perhaps four, five or six counties, one county voting against an elected regional assembly could frustrate the other four or five counties that expressed a clear view in favour of one. Where is the democratic fairness if one county gets a veto over all the rest? It would be very unfair.
	That is not the other side of the coin of the urban-versus-rural argument. I do not accept that everyone in either urban areas or rural ones will vote the same way. That is why I said that the noble Baroness, Lady Blatch, operated as a two-nation Tory because she saw the situation in black and white—you were rural or urban, and you were set against each other—which is not the intention of the Bill. The amendment is designed to frustrate the Bill. But that has been the intention of the Conservative Opposition all along.
	We have made changes to the Bill. Those changes have been shown, by and large, through votes to satisfy the majority of the House. Where the single tier is to be arranged, those who decide will choose the form of the single tier. I do not know what it will be. It will be up to the Boundary Committee to come forward with that in the way that we discussed. It would be very unfair if the amendment were carried, because we would be pulling a fast one. Noble Lords could not go on the stump to defend the ability of one county to stop in their tracks another three or four counties voting the other way. From a democratic standpoint, it would be completely indefensible.

Earl Peel: My Lords, will the noble Lord accept that in principle it would be acceptable if the majority of counties were in favour?

Lord Rooker: My Lords, I am speaking to this amendment. That is not what this amendment says. It would enable one county to veto the rest. If the Tories wish to change their policy and return with something else, I shall debate it. But this amendment says that one county voting against an elected regional assembly could decide, irrespective of what every other county voted. Where is the fairness in that? It cannot be fair; it is absolutely disgraceful to try to defend it. There are no new arguments to be made and there are no new arguments I can make.
	Contrary to what my noble friend Lord Stoddart has said, I intend to abide by the strictures I have been given, irrespective of how it is written down. Once I sit down, having made this short contribution, I do not intend to stand again. Therefore I thank the team of officials who have supported me, the staff in my Private Office and my noble friend Lord Evans. I also thank the Opposition for the pleasantries and the spirited way in which they have taught me a few things about this House—I am learning every day.

Lord Pearson of Rannoch: My Lords—

Lord Rooker: My Lords, I am not giving way to the noble Lord because I intend to sit down. I shall not answer the Europe argument because I have done that already. I thank noble Lords on all sides of the House for the way in which they have helped scrutinise the Bill. It justifies what I have said since I have been in this House—scrutiny of Ministers in this House is much superior to that in another place. I am collecting evidence as the months go by for this. I have no problems saying that—it does not cause me any difficulties. However, I certainly hope that this amendment is not carried.

Lord Hanningfield: My Lords, I am becoming concerned about the kind words the Minister keeps saying about me—he will be doing me a disservice on this side of the House.
	Fortunately, they are about my knowledge and involvement in local government. That is in the spirit in which we moved this last amendment. In Committee, on Report and now today, we have been told consistently that there is no new money. There will have to be new money. Reorganising local government will cost a lot of money. Local government officials are already talking to Treasury officials and I do not think that the Treasury share some of the views we have heard from the Government Front Bench during this debate. It will cost money. It will not be a case of "no new money"—a considerable amount of money will be spent on reorganising local government. I have been through this before. We heard the noble Lord, Lord Greaves, talk of his experience of the 1970s. The reorganisation of local government is very expensive.
	Local government is about providing services. It delivers services to thousands of people every day. I have said that in Essex every day we deliver services to 20,000 people in their homes, in care, and noble Lords can multiply that to reach a figure for the whole country. Those services will be disrupted. Elderly and disabled people will not know where their care will come from. Staff will be concerned. I have addressed meetings of staff who are concerned about local government reorganisation. We have taken local government reorganisation far too lightly during these debates.
	Whatever the Government wanted in regional government, they should not have embarked on a wholesale reorganisation of local government. It was contrary to what they promised when they first came to power. They said that they did not want local government reorganisation, which pleased me because it was a nightmare during the Conservative period. I admit local government organisation was not a great success. It does not win friends and it is of no help to services.
	With this amendment, I was, at this last stage, trying to do something for the Northumberlands, the North Yorkshires, the Cumbrias and the Lancashires, who look to be under threat in the coming months. There will be a tremendous amount of disruption. We are making a last-ditch attempt to get the Government to acknowledge the problem and give these areas a chance to keep their two tiers. That would be the best outcome. The Government have proceeded with this Bill in a way which has caused more harm than if they had kept the two tiers. They have made a fundamental mistake and they will realise that in the months to come. There would have been greater acceptance of regional government if they had kept the two tiers. They will live to regret it. At this stage we have to test the feeling of the House.

On Question, Whether the said amendment (No. 16) shall be agreed to?
	Their Lordships divided: Contents, 118; Not-Contents, 157.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Rooker: My Lords, I beg to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Rooker.)

Baroness Hanham: My Lords, the Minister said that he will say no more so I am taking the risk of not being answered back. On behalf of my trio of Front Bench colleagues, I should like to thank both Ministers for their general courtesy, good humour—although I thought the Minister a little tetchy today but, in general, he has been in fairly good humour—and friendliness throughout the passage of the Bill.
	I cannot say that we are satisfied that amendments have been made which, at the outset, I believed both we and the Liberal Democrats wished to see in this Bill. Of course, we all know the reason for that. It is because the Liberal Democrats have chosen not to support us in the areas which would have made this Bill more acceptable.
	However, we have had commitments from the Government to ensure that proper information is provided to voters as to what they are voting about and that the soundings exercise will be brought to this House at the same time as any referendum decision is being taken. The Minister made, as best he could, a commitment that he would try to ensure that there would be a draft regional assemblies Bill before any decisions regarding referendums had to be made. If that could not be obtained by amendment, I believe that we have obtained it by commitment. We have probably obtained useful acknowledgement from the Government of some of the difficulties.
	The issue has been hard fought and it has been very interesting times. Again, I thank the Ministers and their officials for their help.

Baroness Hamwee: My Lords, I, too, repeat the thanks, even though our experiences have been rather different. But the thanks are the same and very genuine. We think that it is important to be starting on the road towards strategic regional government. The Minister said that the number of quangos that we have and the spending power that they have go without adequate scrutiny. We fully agree that scrutiny of the spending of those billions of pounds is very important and a step on the way to full democratic accountability.
	We said throughout that we regard issues of regional and local government as separate. We stand by our view that it is better to accept the solution to agree what is on offer; that is, to give people choice as to the structure of their local government. That is better than to lose the opportunity for regional government.
	The issue now is to get the powers and functions of regional government right and to go out and win the referendums.

Lord Stoddart of Swindon: My Lords, during the previous amendment when I said that I intended speaking on Bill do now pass, the Minister pointed out that that would be incorrect. However, because the noble Baronesses, Lady Hanham and Lady Hamwee, have spoken on Bill do now pass, it seems to me that I am in good company. Therefore, I shall say a few words although I had been prepared to accept the view which the Minister put forward.
	I reiterate my complete opposition to this Bill, which I expressed at Second Reading. It will not make for better government and, indeed, it is clear that it will blur the relationship between central and local government. A few useful amendments have been made during the passage of the Bill but it largely remains as it was when first introduced to the House. Something which worries me very much, and ought to worry local authorities, is that although the Government say that no powers will be taken from local government in the Bill, nevertheless there are powers for the elected regional authorities to precept on the local authorities. Local authorities ought to take due notice because they will find that their ratepayers will pay additional rates without having voted for the authority which will be spending that money.
	I wish to make only one other point. During the long discussions on the soundings exercise, there was no question that a number of local authorities, Sunderland among them, were in danger of using their ratepayers' money to promote the idea of elected regional assemblies. Many members were concerned about this and it was left to Mr Neil Heron to challenge the local authority in Sunderland for using council tax payers' money. From a letter received by Mr Heron, it has become clear that if the organisations supporting regional government had used any such money for those purposes, that would have been illegal. The local authority in Sunderland should have been aware of that. I am sorry that it was not.
	One of the problems with local government these days is that authorities are run on a cabinet basis and thus most councillors are sidelined. It is most unfortunate that the local authority—

Lord Tordoff: My Lords, I am grateful to the noble Lord. While he is correct to say that it is possible to make speeches on Bill do now pass, the Companion makes it clear that they are intended to be formal. Although the noble Lord may not be technically outside the Companion, nevertheless he is abusing the conventions of the House. I would suggest to him that this does not do the House any good. One of these days, it will lead to our having to have a Speaker to stop this kind of thing from happening.

Lord Stoddart of Swindon: My Lords, I regret that the noble Lord, Lord Tordoff, thinks that I am abusing the procedures of the House. It is not something that I would do intentionally and, indeed, I do not think that I am doing so now. In any event, I was about to bring my remarks to a close when the noble Lord interrupted me.
	Local authorities and local councillors ought to be on the ball when it comes to spending council tax payers' money. It should not be left to members of the public to draw the attention of councillors to abuses of the system; councillors should be doing that themselves.
	On Question, Bill passed, and returned to the Commons with amendments.

Iraq and Israel/Palestine

Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Foreign Affairs. The Statement is as follows:
	"With permission, Mr Speaker, I should like to make a Statement on Iraq and on the Middle East peace process. First, let me start with the security situation in Iraq. Large-scale combat operations are over. The overwhelming majority of the country is under coalition control. The vast bulk of Saddam Hussein's forces have been defeated, dispersed or isolated, although minor pockets of resistance remain in Baghdad and some other towns.
	"When the House rose for the Easter Recess, the main challenge confronting coalition forces was civil disorder and looting in the immediate aftermath of the fall of the regime. It would have been a miracle had there not been such an outburst of anger, frustration and lawlessness in a country where the population had lived for so long in daily fear of torture, arbitrary arrest and summary execution.
	"Over the past two weeks, the looting and civil disorder has declined. In Baghdad, local police have offered their services and joint patrols with coalition troops are under way. An effective curfew is in place. Baghdad's main hospitals are working and the United Nations Office of the Humanitarian Co-ordinator for Iraq reports that clean water is available to most parts of the city.
	"More widely, schools and markets are reopening. Local hospitals are resuming normal service and field hospitals, including those supplied by Jordan and Saudi Arabia, are functioning well. Electricity and water supplies are reaching most of the country.
	"In Basra—the centre of the area under British military control—UK forces are carrying out joint operations with local police, and providing food and water through aid distribution points established on the outskirts of the city. A local judicial system is being established. And thanks to help from British engineers and local Red Cross workers, the three main power stations supplying Basra are now up and running, and the city's electricity and water supplies have been restored to pre-conflict levels. In certain respects in the south, facilities are already in better shape than they were before military action started. The seaway into Umm Qasr is being dredged to take larger vessels, and the grain store is open. The railway line from the town to Basra, which had not been working for many years, is now running thanks to British military engineers, and plans are in hand to reopen the line to Baghdad.
	"In northern Iraq, essential supplies of wheat, oil and medical goods are being delivered unhindered. UNICEF reports that all schools in the north have reopened and that the vast majority of people displaced by the conflict have now returned to their homes.
	"In the coming weeks, coalition forces will increasingly share the burden for the delivery of essential services and aid with the Office for Reconstruction and Humanitarian Assistance (ORHA), and with UN agencies and NGOs. When I visited Kuwait, Bahrain, Qatar and Saudi Arabia just before Easter, I discussed ORHA's plans with its head, Jay Garner, and colleagues based in Kuwait. Mr Garner moved into Iraq just a week ago. A number of countries are making substantial contributions to ORHA. Australia, Denmark and Japan have already provided personnel. Others, including Spain, Romania, South Korea and Italy, are about to do so. For our part, we have so far provided 20 British staff, including one of Mr Garner's three deputies, Major General Tim Cross. We will be making further contributions to ORHA to help get Iraq back on its feet.
	"As well as meeting humanitarian and other essential needs, and starting the process of physical reconstruction, a key objective of the coalition is to support a viable political process which allows the Iraqi people to create representative, democratic government. In the Basra and south-eastern sector which we control, we began this process at a local level by sponsoring representative town meetings. Similar local and regional level meetings have been held elsewhere.
	"On 15th April, the first meeting of national Iraqi representatives was held at Al Nasiriyah. This was attended by a senior British diplomat, Edward Chaplin. A second such meeting—on a larger scale—is being held today in Baghdad. My honourable friend the Member for North Warwickshire, the Parliamentary Under-Secretary of State, and a senior FCO official are attending. We will of course ensure that the House is informed of the outcome of the meeting.
	"We hope that the current process of consultation will culminate in a national conference of Iraqi representatives. This would, first, set up an Iraqi Interim Authority to take over progressively responsibility for the administration of Iraq. Secondly, it would create a constitutional framework to prepare the ground for the election of a democratic government run by the Iraqi people themselves.
	"As President Bush and my right honourable friend the Prime Minister have made clear, the United Nations will have a vital role in Iraq's reconstruction. Last week the United Nations Security Council unanimously adopted Resolution 1476 which will extend the new arrangements for the UN's Oil for Food programme until 3rd June. In the coming weeks, the Security Council will have to consider a range of other issues. This will include the future of the sanctions regime and the subsequent management of Iraq's oil revenues.
	"There is also the question of the future arrangements for verifying Iraq's disarmament of weapons of mass destruction. In his presentation to the United Nations Security Council last week, the head of UNMOVIC, Dr Hans Blix, recognised that,
	'in a situation that is still insecure . . . civilian international inspection can hardly operate',
	and that,
	'some of the premises upon which the Council established UNMOVIC and gave it far-reaching powers . . . have changed'.
	He also accepted that coalition authorities would be as eager as UNMOVIC to find weapons of mass destruction.
	"In the absence of the secure environment referred to by Dr Blix, the task of locating this material inevitably falls to coalition forces. We are actively pursuing sites, documentation and individuals connected with Iraq's programmes. Both the United Kingdom and the United States have deployed specialist personnel and will be sending more in the near future.
	"But the investigations are unlikely to be quick. The inspection process itself will be painstaking and detailed: we want to establish the truth beyond any doubt. The testimony from scientists and documentation about WMD development and production programmes will be the key to determining the fate of prohibited equipment, materials and munitions. But we cannot expect witnesses to come forward until they are confident that they can speak freely.
	"Even so, I know that some Members of this House have expressed concerns about the justification for military action in the absence of discoveries of illegal Iraqi weapons. Let me make two observations here. First, military action was taken on the basis set out in SCR 1441; namely, that Iraq's,
	'non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles',
	posed a threat,
	'to international peace and security'.
	"The evidence against Iraq then was—and remains—overwhelming. It was charted by UNMOVIC in damning detail in the 173 pages of its report on Unresolved Disarmament Issues: Iraq's Proscribed Weapons Programmes which was published on 7th March. My second point is that Saddam had ample time to conceal his WMD programmes prior to the start of military operations. Indeed his experience in concealment dates back to the early 1990s.
	"Before I move on to the Middle East peace process, let me say this. It is only 19 days since Baghdad was liberated and barely two weeks since the end of serious fighting. In that time civil disorder has subsided and—as we saw in the joyous Shia pilgrimage to Karbala last week—the Iraqi people have begun to enjoy the taste of freedom. Of course there are some problems associated with this dramatic change for the Iraqi people after more than 20 years of coping with a brutal and vicious regime. But a new and representative Iraqi Government, run by the Iraqi people for the Iraqi people, will help to guarantee this freedom for future generations. For all the immense challenges which lie ahead, one thing I know for certain: Iraq's future will be better than its past.
	"Of course the Middle East will never look forward to a secure future as long as a settlement to the region's oldest dispute remains beyond reach. For the past months, the Government have worked tirelessly to secure the publication and implementation of the road map, a document agreed by the Quartet Group of the United States, Russia, the United Nations and the European Union, which sets out a path to a peaceful settlement between the Israelis and the Palestinians. I greatly welcome the commitment from President Bush to devote as much effort to this cause as my right honourable friend the Prime Minister has given to the search for peace in Northern Ireland.
	"Later this week the Palestinian Legislative Council will be asked to endorse the appointment of a new Cabinet for the Palestinian Authority. Under the leadership of Prime Minister Mahmoud Abbas, one of the main architects of the Oslo Accords, this Cabinet has, I believe, the courage and ability to take the tough measures necessary to clamp down on terrorism and to lead the Palestinians into a constructive dialogue with the Israelis and the international community. This, and action by the Israeli Government to ensure that the Israeli Defence Force acts strictly within international law, should bring an end to the spiral of killings which has claimed over 3,000 lives on both sides over the past two and a half years.
	"Once the Palestinian Legislative Council endorses Mahmoud Abbas's Cabinet, the road map will be published. For the first time for a long time we should then be able to speak of a peace process in which the parties themselves are actively engaged. The road map charts a course to the outcome which the entire world wants to see—a secure state of Israel and a viable Palestinian state, consistent with United Nations Security Council resolutions and the principle of land for peace. We will maintain our very close dialogue with the United States to push this process forward and we will do all we can with it and our European partners to help with the implementation of the road map.
	"With visionary leadership and courageous statesmanship from both sides, the outcome I have described can, in our judgment, be achieved by 2005. This would not just bring an end to the misery of millions of Israelis and Palestinians who live every day under the shadow of indiscriminate violence, it would remove the single greatest source of resentment and mistrust which bedevils relations between the West and the Muslim world. I know that all sides of the House will support the Government's efforts to secure this great prize".
	My Lords, that concludes the Statement.

Baroness Rawlings: My Lords, we are deeply grateful to the Minister for repeating that full and helpful Statement. The war has been successfully prosecuted and concluded. The professionalism of our Armed Forces greatly shortened the war and mitigated substantially the innocent deaths and injuries that might otherwise have occurred. This was openly recognised to me and was in fact the first comment of the US Secretary of Defence, Mr Donald Rumsfeld, when I saw him in Washington recently. From these Benches we pay a great tribute to the Armed Forces.
	The rebuilding of confidence in Iraq and in the wider region is now the overreaching priority. We have always made clear that we would be also looking for a well-prepared plan of reconstruction and re-democratisation of Iraq and a firm plan for making progress on the Middle East peace process. It is on these areas that I wish to raise some questions.
	The first priority for post-Saddam Iraq must be the restoration of law and order and the creation of security and stability. One of the greatest problems facing the coalition is the disparate nature of Iraqi society. The news today that one of Iraq's main Shi'ite organisations might boycott today's meeting called by Mr Jay Garner underlines the battle we will face in the months ahead.
	A future system of government that excludes any group from the representative process will only exacerbate tensions. What plans are there to ensure that this does not happen, and what is the UN's participation in them? It is vital at this stage that local leaders in civic society, and in particular the main Shia clerics and organisations, are part of the discussion on these matters.
	The elimination of weapons of mass destruction was a main objective of the action. I thank the Minister for updating the House on this matter. The Foreign Secretary talks of the need for independent verification, but will this—despite the Defence Secretary's words—be undertaken by UN inspectors? And if not, why not?
	While on the subject of the UN, can the Minister clarify what role it will play in the Oil for Food programme? Can the Minister shed any light on a report yesterday that suggested that the UN was grossly mishandling the Oil for Food programme? Could that be the reason why Washington wants sanctions lifted and the Oil for Food programme phased out? Russia wants the UN Secretary-General to run the entire programme until an internationally recognised Iraqi government come into power, which could take several years. What is the Government's view of that?
	It is important that legal processes are planned at this stage to deal with members of Saddam Hussein's regime for the war crimes committed against the Iraqi people. Justice must above all be seen by the Iraqi people to be done. Where and under what law will they be tried?
	The confidence of the whole region will be massively strengthened by genuine progress in the Middle East peace process. Does the Minister agree that the dialogue between the two sides, at whatever level, would be an important step forward? Does she join me in welcoming Ariel Sharon's reported invitation to Abu Mazen to meet him in Jerusalem for discussions? Will she give such a dialogue all possible encouragement, especially if publication of the road map is further delayed? Does she see any reason why it might be?
	We have supported the Government in the removal of Saddam Hussein and his weapons of mass destruction because it was right and in our national interest to do so. Now the challenge is to build confidence and stability throughout the region. That, too, is right and in our national interest. So long as that remains the Government's objective and they pursue it with due competence, they will continue to have our support.

Lord Wallace of Saltaire: My Lords, we on these Benches welcome the Government's information on progress being made, especially in areas under British control, in re-establishing essential services and law and order and in laying the foundations for a return of self-government to Iraq. We regret the confusion, not mentioned in the Statement, of the first days of occupation of Baghdad and the destruction and looting of hospitals, ministries and the Iraqi national museum.
	We are puzzled by the uncertainty about the future role of the UN. Paragraph 8 refers to UN agencies and NGOs as a sort of afterthought, but in paragraph 12 we are told that President Bush has now agreed that,
	Xthe United Nations will have a vital role in Iraq's reconstruction".
	We hope that it will also have a role in legitimising the transfer of authority in Iraq, not simply in providing humanitarian aid. It is important that the international community as a whole shares the responsibility for re- establishing legal authority in Iraq. That should not be left to the occupying powers alone.
	On inspection, we are unhappy about the rather selective quotations in paragraph 13 from Hans Blix. That is not what I understand to be the tenor of Hans Blix's remarks to the UN Security Council. We are conscious of a fairly active campaign of character assassination against Dr Blix and the UNMOVIC team within Washington. I recall someone pointing out that Dr Blix was not only Swedish but, worse, a Swedish liberal.
	If the truth is to be established, as stated in paragraph 15, it is important that the truth is seen to be established. The confidence and trust of those outside is likely to be much stronger if UNMOVIC can be reintroduced as soon as possible. I am not entirely clear why Washington is resisting that so strongly. To whom are the British members of the coalition inspection team directly responsible? Are they a junior partner in an American-led inspection team or do they have independent authority to report both to the British Government and to publish their findings?
	We are puzzled about the reference to the inspections needing to take time. We were told before the intervention that time was not necessary, that the inspectors did not need very much more time and that if they wanted more time they were clearly not doing their job seriously.
	My concern on the question of inspection is that, throughout the process over the past nine months, our Government and the American Government have oversold the information established. Reference is made to the dossier of 7th March, with its 173 pages, as being a damning dossier. When I read that document in detail after the previous Statement, it did not seem quite as damning as the Government suggested. There was a debate as to whether anthrax had been produced in 1991 as well as in 1990, and it was suggested that under some ideal conditions some of the anthrax produced in 1990 or 1991 might possibly still be of some utility. The question of where we are now with weapons of mass destruction and what is found is of prime importance to legitimising what has been done.
	We regret that no mention is made of the neighbours. Much discussion has taken place within the US Administration of the role of Syria and future relations with Iran. We need to ensure that the neighbours share some responsibility for re-establishing legal authority in Iraq and, given that the majority of people in Iraq are Shia, the role of Iran is clearly of extreme importance. It is desirable to rebuild co-operation across the region. Inviting other Arab governments to share in responsibilities for reconstruction and rebuilding therefore seems to us extremely important.
	Lastly, the Statement turns to Iraq and Palestine. We are happy to see confirmation that the road map is not intended to be amendable and is to be implemented as rapidly as possible. President Bush has given the remarkable commitment to devote as much effort and attention to the process of peace between Israel and the Palestinians as our own Prime Minister has done in Northern Ireland. The Israeli response has not yet been very encouraging; Prime Minister Sharon indicated that settlements will continue and will not be cut back. A wall is being constructed that will make the process of land for peace and a viable Palestinian state, to which paragraph 21 refers, a great deal more difficult.
	Israel has the responsibilities of an occupying power within Palestine. Will the Minister explain what the phrase in paragraph 20 means in referring to,
	Xaction by the Israeli Government to ensure that the Israeli Defence Force acts strictly within international law"?
	What exactly does that refer to?

Baroness Symons of Vernham Dean: My Lords, I thank both the noble Baroness and the noble Lord for their response to my right honourable friend's Statement. I agree strongly with what the noble Baroness, Lady Rawlings, said about the professionalism of our Armed Forces, an absolutely crucial part of the success of the military alliance. I would also say—and I am sure she would agree—that their courage and their humanitarian approach were absolutely crucial. Our Armed Forces may have learned their compassion and humanitarian approach for the saddest possible reasons, from patrolling Northern Ireland. However, the fact that they patrol as they do, taking off their helmets and getting into their berets as quickly as possible, has been absolutely crucial in Basra.
	I agree with comments made by the noble Baroness, Lady Rawlings, about the role of law and order. That is a first priority. I hope that she agrees that the Statement's references to the re-establishing of law and order is encouraging, although it is not there yet by any means. I was a little surprised by the comment of the noble Lord, Lord Wallace of Saltaire, that the Statement does not mention looting: it is mentioned at the beginning. The Statement says that it would have been a "miracle" if there had been no such incidents in the initial period after Baghdad fell. I believe that to be a fair statement. It is one I have made in response to points raised by the noble Lord's Liberal Democrat colleagues in the past.
	The meeting today in Baghdad is, indeed, very important. It is true that not everyone is there that we should like to see present. However, there is a significant Shia participation. A significant proportion of the Shia groups have attended. We should like to see all of the groups properly represented in any decisions over the future of the Iraqi government. I understand that in the current discussions the majority of participants are Shia. We understand that SCIRI, the Supreme Council for Islamic Revolution in Iraq—I believe that that is the group which the noble Lord may be thinking of—was reluctant to attend, but we hope very much that it will do so in future. The principles set out at Al Nasiriyah in the 13-point plan are those upon which we hope it will operate. As I am sure your Lordships will have seen, included in those principles are the provisions that the rule of law and order must be paramount in any future Iraqi state and that Iraq must be built on respect for diversity, including, of course, respect for the role of women.
	The noble Lord, Lord Wallace of Saltaire, was concerned about the role of Dr Blix and claimed that some rather unfair comments had been made about him. I am bound to say to the noble Lord from this Dispatch Box that I have defended Dr Blix time and time again when the noble Lord or others have raised certain difficulties. I have expressed the confidence of Her Majesty's Government in Dr Blix. I have no difficulty in doing so again. Her Majesty's Government accept that independent verification will be important. However, there is not an altogether permissive environment at the moment, as Dr Blix's statement made clear. The noble Lord says that the Statement is selective. I am bound to say that Dr Blix has acknowledged that there is not a secure environment at the moment. The exact method by which independent verification can take place is under discussion. We hope that we shall come to an agreement on that. When we do come to such an agreement, we shall say exactly what that agreement is.
	Some matters are under investigation. As the Statement makes clear, there is documentation to be studied, sites to be visited and people to be interviewed. It is very important that we try to do everything we can, not to say that we are not touching any of the issues connected with WMD until we can get independent verification. There is a job that we can be getting on with although we absolutely acknowledge that independent verification will be important in due course.
	I turn back to the rest of the UN's role. We have made it clear in the past that the United Nations must have an important role in the reconstruction of Iraq. Not only the British Government have made that clear, President Bush also made it clear in his statement at Hillsborough. The exact nature of the role is, of course, for the United Nations and, if I may say so, for the Iraqis to decide upon. We should like to see active co-operation. We should like to see active collaboration. For example, we should like to see the UN supervise the lifting of sanctions and the future of the Oil for Food programme on which the noble Lord asked questions. The current UN Security Council Resolution 1476 runs only until 3rd June. If, at that point, there is still no decision about the longer term, the question will be raised about the rollover of the Oil for Food programme. The United Nations is obviously the authority to which any such questions will have to be addressed. The future of Iraqi oil also needs to be discussed. That will be crucial in the building of the future of the Iraqi people for the Iraqi people.
	I believe that we share many of the objectives for reconstructing Iraq with our friends elsewhere in the United Nations. The main point is that the reconstruction of Iraq should be something in which the Iraqi people have a major say. If I can put it this way, it should be made as easy as possible for the Iraqi people to embrace their future.
	The noble Lord, Lord Wallace of Saltaire, says there is nothing in the Statement about neighbours. There is something in the Statement about four of the neighbours: Kuwait, Bahrain, Qatar and Saudi Arabia, all of whom were visited by my right honourable friend two weeks ago. By my reckoning that is a majority of the neighbours. The Statement does not mention Syria, Iran or Jordan, except in so far as Jordan is providing some of the field hospitals. That is five out of the seven. But, of course, the fact is that Syria and Iran are the countries that are raised as matters of concern. The noble Lord will know that my right honourable friend has been in constant touch with his opposite numbers in both countries. We have a dialogue with both countries. I believe that that dialogue has been pursued very successfully. In fact, my honourable friend Mr O'Brien has also visited those two countries in the very recent past—in the past few weeks or so—so we have maintained a good deal of contact with Syria and Iran as well as with countries specifically mentioned in the Statement.
	The Middle East peace process is a vital issue. The noble Lord asked about the Israeli defence forces. Your Lordships will know that in the past we have often discussed some of the reactions of the Israeli defence forces. Questions have been raised about their reactions to some of the terrorist outrages perpetrated by extremists on the Palestinian side. The point is that we wish to be even-handed about the implementation of any road map. What we wish to see is both sides agreeing to stop the spiral of violence. That is enormously important. We hope that the publication of the road map will take place this week. I cannot guarantee that but it is clearly implicit in the Statement. We welcome any invitations from either side to talk seriously to each other about a way forward. We hope that all sides in this terrible conflict will welcome an opportunity for peace although we understand all the misgivings that will arise and all the people who will wave their hands and say, "There are 100 different reasons why we should not go forward on this". That is inevitable after the years of distrust and violence. I hope that all sides and all your Lordships will welcome this as a genuine opportunity to make the best of a real chance for peace that may exist in a way that we have not seen for a number of years.

Lord Richard: My Lords, will my noble friend say more about the United Nations as I was intrigued by her comment that it was for the UN to decide its role? I ask my noble friend what I hope is a fairly clear and relatively simple question. Do the Government envisage the United Nations playing a role, and if so what role, in the administration of Iraq and in its transition to a democratic state?

Baroness Symons of Vernham Dean: My Lords, the Government see the role of the UN as providing the authority during any future interim period before the Iraqi state can be governed fully by the Iraqi people. The length of such a period may be very much open for debate. We have so far had the two meetings mentioned in the Statement—one in Al Nasiriyah a couple of weeks ago and one in Baghdad today. Indeed, your Lordships may have heard more about the outcome of today's meeting in Baghdad than I am aware of as I have been waiting on the Front Bench to make the Statement to your Lordships. In my judgment the meeting in Baghdad must now be drawing to a close.
	The United Nations will be the authoritative body under which any administration takes place between the period of ORHA under Jay Garner and an interim Iraqi authority taking up the reins of power in Iraq. I cannot tell how far off that period may be, nor indeed how long it will last, but I do know that the authority of the United Nations will be vital. That is not the same as saying that the United Nations will be the administrative authority, if that was what the noble Lord asked me. That is not necessarily the position at all. But the United Nations should provide the authority for any such administration before the Iraqi people are able to govern themselves.

Lord Elton: My Lords, on the matter of humanitarian urgency, the noble Baroness will remember that she assured us that every time cluster bombs were used the event was recorded with precision. Can she tell us how many have been used in the British sector and, if possible, in the American sector? What steps are now being taken to defuse the up to 9 per cent of the lethal bomblets that they leave unexploded behind them? Are steps being taken to leaflet the areas where they were dropped in the local dialect and with clearly recognisable pictures that the parents of children playing there can see and understand? In future will it be common practice to leaflet those areas from the air when the ordnance is originally used because we shall see a lot of maimed children if something of that sort is not done?

Baroness Symons of Vernham Dean: My Lords, I absolutely understand the noble Lord's concern about the use of those weapons. I am bound to say that they are used only when we have no alternative and, so far as we are able, we do not use them in closed areas where they would undoubtedly do civilian damage. We use them where necessary. They have particular kinetic properties that, in the judgment of our military, are sometimes very necessary to use when coming up against heavy artillery or heavily armoured ordnance from a combatant.
	We take very careful note when we use such weapons. We are fully aware of the fact that just under 10 per cent of them do not explode on impact, as the noble Lord indicated. We tell people when we are using them, but I cannot tell him how many we have used, nor how many the Americans have used. If that information is available—I do not know that it is—I will write to him with it and place a copy of my letter in the Library.

Lord Hannay of Chiswick: My Lords, perhaps the noble Baroness will forgive me for speaking again about the UN role. In at least my opinion, that vital role is in need of a bit of vitalisation, of which it has had singularly little so far.
	I have three specific points. The first is on the political process. Is it sensible to start the process of bringing Iraqi parties together—that is highly desirable—to get them to work out the basis for a future Iraqi body politic without any involvement of an external kind other than that of the United States and the United Kingdom? Is that the best way to achieve legitimacy for what may issue from that process? Would it not be better if the United Nations were at least involved, although not in the role of the authority, which can clearly not be taken away from the occupying powers? However, it should be involved at an early stage in the evolution of that new body politic.
	Secondly, on the question of verification, the arguments against any involvement at this stage of UNMOVIC and Dr Blix are frankly a little thin. Iraq seems filled with civilians, NGOs and others doing absolutely necessary and vital work. No one is saying that they cannot go in because the security situation is so terrible that they might be at risk. Is it not possible that, in some limited way at least, the United Nations inspectors could again begin to give legitimacy to the very necessary work being done by the coalition experts, some of whom, I understand, are civilians anyway?
	My third question is on trying Iraqis of the regime for the appalling human rights abuses and other crimes that they have committed. Is it seriously to be believed that they can be tried in an Iraqi court? That does not seem to make much sense. We would not have thought much of that idea in 1945 in Germany. Is it not right that there has to be some kind of international involvement? If there is to be international involvement, would it not be better shared with the United Nations which, for example, in Cambodia is trying to move ahead with trials of war crimes in a mixed format, as it is in Sierra Leone?
	On all those fronts, it would be wise to bring a bit more vitality to that vital role.

Baroness Symons of Vernham Dean: My Lords, I agree with a great deal of what the noble Lord says. However, I remind him of the point made in my right honourable friend's Statement that it is only 19 days since the statue of Saddam Hussein came down in the central square of Baghdad, and only two weeks since the serious fighting stopped. I ask the noble Lord to exercise his customary diplomatic skills and patience, and I hope that, by arguing very forcefully for the UN's vital role—we use the word advisedly—we go towards the process of vitalisation that he described so eloquently.
	The fact is that Resolution 1476—the Oil for Food programme resolution—is pretty vitalising. Work is going on in the United Nations to try to establish how the future might be resolved in ways that not only bring the Iraqi parties together, but that involve some authority from outside. I agree that it is important that a wide coalition of bodies be brought together. So far as I understand it, the Iraqi conference in Baghdad today represents enormous diversity. The regional, tribal, political and ethnic groups that have come forward have been much more varied than those able to attend in Nasiriyah.
	However, I am bound to say that the security situation in Iraq remains very fluid. For example, we in the United Kingdom are still advising against travel to Iraq. Although we are aware of the important work of the humanitarian aid workers and others who may be able to give important advice on, for example, the re-establishing of civil society in Iraq, it is not a permissive environment at the moment. It is becoming more so on a day-by-day basis, as the Statement was able to describe, in terms of not only law and order, for example, but the provision of clean water and electricity. Those are very important elements in bringing stability to the country.
	We are trying to ensure that we get UN expertise into Iraq. There is a sensitive and difficult question about the proper means of going forward with any trials or administration of justice against those who may be thought guilty of war crimes. The noble Lord will know that Iraq is not a party to the International Criminal Court, but I take his point that it may not always be wise for people to be tried in courts where there may be some local scores to settle. It is important that we keep an eye on ensuring that, however the trials take place, the demands of justice are met.

Lord Redesdale: My Lords, the Minister mentioned looting in the Statement and that it was almost inevitable. It came as no surprise to anyone that looting took place; it is only unfortunate that it took place in the Baghdad museum. That is particularly unfortunate to members of the all-party archaeological group, considering that the noble Lords, Lord Renfrew and Lord Lea, and I wrote a letter to the Minister before Easter specifically pointing out the areas at particular risk. Nothing was done at any of those sites.
	Obviously it would be wrong of me to say that something should have been done, because it has not been done. However, what will now be done to protect the very rich and varied archaeological heritage of Iraq? It is likely that such heritage will be ransacked in the period when the interim authority has not got to its feet and will not be able to protect it.
	Further to the question about cluster bombs, were maps made of where depleted uranium munitions were used? A very worrying recent report talks about the combination of not only their low-level radioactivity, but their increasingly worrying high-level toxicity. That means that we could have been using munitions that will be incredibly dangerous for many years to come. What is being done to clear up those munitions? What steps are we taking to protect our own soldiers in such a toxic environment, as well as Iraqi civilians?

Baroness Symons of Vernham Dean: My Lords, I do not think that the looting was particularly unfortunate because three Members of the House wrote to say that it might happen; it was a dreadful thing to happen anyway. Looting of cultural and archaeological sites such as took place in the Baghdad museum is a matter of enormous concern. Coalition forces have taken direct action where possible to post military personnel at vulnerable sites. However, every time the troops stopped, they were shot at. The noble Lord must remember that our forces and the American forces were involved in a real, full-scale military engagement. The absolute priority was the saving of civilian life and the lives of our own coalition forces. No one could argue with that.
	Of course such items must be looked after. My right honourable friend the Secretary of State at the DCMS and her colleagues are looking beyond the immediate problems of looting and acting to prevent the treasures of Iraq coming on to the international art market. We believe that some of the looting took place almost to order by individual collectors who knew what was in the museums and paid criminals to go in and fetch out the items. I understand that FBI agents have joined Interpol in a recovery operation for those stolen works. I am able to tell the noble Lord that a seminar to be held tomorrow at the British Museum will be attended by representatives of a number of national museums, including the Baghdad museum.
	I hope that the noble Lord feels that we are doing everything we can. I am bound to say to him that it was not a simple case of telephoning someone and saying, "Please stop the looting of Baghdad museum". The noble Lord fails to understand what was really going on in Baghdad in the days immediately following the fall of Baghdad.
	As to the matter of depleted uranium, we shall consider the questions raised by the noble Lord. At present I am not able to tell him the full range of the munitions used. As I have already undertaken to write to the noble Lord, Lord Elton, on the question of cluster bombs, I shall ensure that my letter also covers the issue of depleted uranium. I absolutely understand that it is a matter of real concern to your Lordships and one that they have addressed on a number of occasions.

Lord Janner of Braunstone: My Lords, does my noble friend agree that both hands must clap if there is to be peace in the Middle East? Does she accept that, whatever his perceived faults, Prime Minister Sharon has made it plain that he is prepared to accept—and believes it to be right—that there should be two states living side by side in peace and that he will work on the settlement issue not when terrorism and suicide bombing stops but when there is a visible, real and clear effort to stop them?
	In those circumstances, does my noble friend accept that the leaders of all Israel's political parties, most of whom I met last week, wish there to be peace but do not believe that it will be possible while Chairman Arafat has real control? I join in welcoming my noble friend's words about Abu Mazen and the new Cabinet. We wish them well. But does my noble friend accept that only if that Cabinet can sideline Arafat can there be movement towards peace because otherwise it will not be acceptable to those who believe that he has been, and is, the creator of the terror and the suicide bombing and the provider of support for both?

Baroness Symons of Vernham Dean: My Lords, I am sorry to say that I cannot agree with all of that. I know that my noble friend's heart is in the right place when he says that both sides must make an effort in this matter—he was clear about that—and that the priority is to stop the violence on both sides. I can agree with that. But I must remind my noble friend that Mr Arafat is the elected leader of his people and that it is not up to us to decide that his role as the president of the Palestinian Authority should end.
	I say to my noble friend that it is important to remember that Abu Mazen, the new Prime Minister, is also the Minister of the Interior. He will be supported in that role by Mohammed Dahlan, who is the Minister of State for Internal Security Affairs and, I believe, also enjoys a considerable amount of international confidence. The Minister of the National Economy, Maher Al-Masri, will also have a very important role in shaping the future Palestinian Authority.
	Therefore, I hope that we shall not criticise particular individuals and their role in the recent past. I hope that, with the publication of the road map, we can now look to the future and what that may hold for both sides in this extraordinarily damaging and vicious conflict.

Lord Renton: My Lords, do the Government accept that the rebuilding or repair of hospitals and people's homes and workplaces should be regarded as a high priority, although a costly one? Perhaps I may suggest that we should accept responsibility for work at Basra, which we managed to occupy without very great damage. But how else will work be paid for throughout the tremendous area of Baghdad and the other places where such damage has been done?

Baroness Symons of Vernham Dean: My Lords, the immediate priorities are the humanitarian ones. They include ensuring that the people of Iraq obtain sufficient food, which we know has been secured—at least for the next couple of weeks or so; the provision of clean water, which, as the Statement set out, is now well under way; the provision of electricity; and ensuring that proper transport and infrastructure systems are in place. It is also vitally important that the schools and hospitals are open. I was able to tell your Lordships that in the north of the country that is largely the case and that situation is now spreading throughout the rest of Baghdad.
	The question of who is to pay for all of that is obviously one that we shall wish to discuss with the United Nations. Let us remember that Iraq is potentially a very rich country. The point is that in the recent past the proceeds of Iraqi oil wealth have not been used for the benefit of the Iraqi people. Our job must be to ensure that the huge potential wealth is used for the people as a whole and not, as in the recent past, for a few members of a vicious regime.

Lord Sheldon: My Lords, I am sure my noble friend agrees that the entire situation in the Middle East would be transformed if there were an Israeli/Palestinian settlement. But is she aware that there is concern that the widespread enthusiasm which we all share for such a settlement may not be matched by the necessary actions that have taken place in the United States? Will she take account of the fact that there is justifiable scepticism about the content, the publication and the implementation of such a road map?

Baroness Symons of Vernham Dean: My Lords, I accept that there is a great deal of scepticism. My noble friend says that the enthusiasm may not be matched in all parts of the United States. I point out to him that I do not believe it is necessarily matched in all parts of the Palestinian Authority nor, indeed, in all parts of the Israeli Administration.
	The fact is that the President of the United States made a forceful statement on this matter when he was in Northern Ireland with the Prime Minister a couple of weeks ago. The repetition in my right honourable friend's Statement this afternoon of the fact that the President of the United States said that he would pursue the peace process in the Middle East with the same vigour as my right honourable friend the Prime Minister has pursued the peace process in Northern Ireland was very telling. I rest on the position of the President of the United States rather than on that of some other members of the Administration who may not be as enthusiastic as he is. He is the one with the real authority.

SARS

Baroness Andrews: My Lords, with permission, I wish to repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for Health on severe acute respiratory syndrome—SARS. The Statement is as follows:
	"SARS was first reported to the World Health Organisation from a number of countries in south-east Asia in mid-February this year. Subsequent information from the Chinese authorities suggests it probably started to emerge in southern China during November last year. It presented as an unknown illness causing fever and severe chest symptoms, including pneumonia. Since then, laboratories around the world, including those in the United Kingdom, have been working to pinpoint the precise cause of this serious new illness. At this stage there is neither a test to diagnose SARS nor an antidote to treat it.
	"SARS has spread to 26 countries but it has been concentrated in a handful of areas, with major outbreaks in Hong Kong, Hanoi, Beijing and other parts of China, Singapore, and Toronto in Canada. According to the most up-to-date information I have received from the WHO this morning, there have been 4,836 probable cases of SARS world-wide and 293 deaths.
	"There are of course understandable public concerns about the impact SARS might have in the United Kingdom. I can confirm to the House that in this country to date there have been just six probable cases of SARS. The last reported case was admitted to hospital on 10th April. All the patients involved were quickly identified and have been successfully looked after by the NHS. All have now returned home and are well. The Chief Medical Officer, Professor Sir Liam Donaldson, has advised that at present SARS poses a low risk for people in this country. So, serious though SARS is, it is important to keep it in perspective.
	"Our approach has been to take a precautionary but proportionate approach. The handling of SARS in this country has been informed—as it must continue to be—by the best scientific and medical advice. In particular the CMO and the new Health Protection Agency, in advising Ministers and the NHS, have been working extremely closely with the World Health Organisation which has the global responsibility for dealing with this disease. Throughout we have followed WHO advice to the letter.
	"It might be helpful if I set out the action taken to date and the further action that we now propose. First, we have provided early, accurate information to both the public and the health service. The CMO contacted all doctors on 14th March and subsequently on 7th April with detailed information on the symptoms and signs of SARS, and what to do if they encountered a possible case. Up-to-date information on SARS is also available to the public on the WHO, HPA and Department of Health websites as well as through the NHS Direct telephone helpline which many members of the public have contacted.
	"Secondly, we have put in place high-quality public health surveillance to enable the disease to be tracked closely. In early March, the Health Protection Agency set up a system for reporting suspect and probable cases.
	"Thirdly, the CMO issued advice to people travelling abroad—on 2nd April, and subsequently on 23rd April—in line with WHO recommendations. He strongly advised against travel to specific SARS-affected areas. That remains his very strong advice.
	"Fourthly, the WHO has advised that screening of passengers should take place at departure from the countries affected. As a further precaution, in line with that WHO guidance, information on SARS has been distributed to the main airports in this country giving advice to returning travellers.
	"Fifthly, we have laid down, in line with WHO advice, specific requirements through guidance issued by the CMO on 14th March and 7th April for the management of patients within NHS hospitals to reduce the risks of cross-infection.
	"Sixthly, and perhaps most importantly for the long term, we have put our country's considerable scientific expertise to work in helping to identify a causative organism for SARS. The HPA central laboratory in Colindale is a key part of the international collaboration which led to the identification of the likely cause. It is also at the leading edge of work to discover an accurate diagnostic test.
	"Over the past few weeks we have been able to draw on the UK's strength in public health and infectious disease control to deal with the threats posed by SARS. I must stress to the House, however, that this is an evolving situation. We are keeping our plans and policies constantly under review. We are learning lessons where they need to be learned, building on good ideas wherever they are to be found and, particularly, tracking this disease very closely in collaboration with our counterparts in other countries around the world. For example, this week we sent an expert from the HPA to Canada to assist them, but at the same time to learn as much as we can from the unfortunate events in Toronto so that we can build the lessons learned there into our own plans here.
	"So far the approach taken to dealing with SARS in this country has proven effective. There is, however, no room for complacency. My clinical and scientific advisers have stressed that we need to retain flexibility in how we respond. We do not yet fully understand how SARS spreads. We do know that most of the cases have been transmitted between people who are in close contact with one another—for example, between healthcare workers and SARS patients—rather than through normal social contact in the wider population. But we cannot reliably predict whether the SARS virus will maintain its current pattern of attack or whether it could change in infectivity or find new routes of transmission. That is why it is so important to strike a balance in how we respond to it.
	"Some have asked why we do not adopt a policy of screening all entrants to the United Kingdom from countries which have had cases of SARS. The problem is that there is no such test. Screening involves asking people a series of questions about their health to identify any signs or suspicious symptoms. That is being done, according to WHO advice, at airports in the areas most affected.
	"I am advised, however, that the early signs and symptoms of SARS occur commonly in the general population and are found with a cold, cough or minor viral infection. Air travel, with its propensity to induce dry throats and coughs, is also a potential source of a large number of false leads. So trying to identify a genuine case of SARS is, as the CMO has put it, like looking for a needle in a haystack. With 4 million British and other visitors travelling between this country and the most affected areas each year, quarantining all those with such non-specific symptoms is simply impractical. Indeed, I have been advised by our scientific experts that none of the six probable cases of SARS so far identified in this country would have been prevented or detected by screening at points of exit, points of entry or on aircraft themselves. Instead each case was picked up because of the patient's awareness of SARS and because of the high level of awareness among NHS staff.
	"Fortunately, the evidence so far is that SARS is transmitted by people only once they have symptoms of the disease and not before. With a disease incubation period of up to 10 days, successful identification and treatment of SARS sufferers so far has been achieved by concentrating public health expertise on those who have returned to this country and developed the disease in the succeeding days. However, this is a changing situation globally. If our experts advise changes to our approach, we will not hesitate to introduce new measures.
	"Others have asked why we do not make SARS a notifiable disease. In this early and important stage of the SARS outbreak it is vitally important that we find out about all cases of the disease through rapid notification of cases rather than through the slow and bureaucratic processes associated with the notifiable disease regime. Unfortunately it has become associated with significant under-reporting of disease.
	"It is in any case extraordinarily unusual for a person in this country suffering from an infectious disease to refuse treatment, to reject advice and persuasion, and to necessitate the police being called to detain them compulsorily. We do not foresee this power being necessary in detaining people who fall ill with SARS at this stage. For the benefit of the House, however, I should mention that the Public Health (Aircraft) Regulations 1979 provide the power to detain for examination any person leaving an aircraft where there are "reasonable grounds" for suspecting that they are suffering from or have been exposed to infection. There is a similar provision in the Public Health (Ships) Regulations. I can tell the House that should the CMO advise me that wider powers are necessary, then SARS will be made notifiable. If necessary, I am advised that we could do so within 48 hours.
	"We remain vigilant to the threat posed by SARS to public health in our country. So I can also tell the House that I am taking further action following advice from the CMO. First, following emerging evidence from the main affected areas that SARS spreads through poor cross-infection control measures, all chief executives of NHS organisations are being reminded to ensure that rigorous controls are in place when treating a patient with possible SARS. This communication will also include an instruction to defer the start date of appointments of any foreign recruits to the NHS from SARS-affected areas.
	"Secondly, I am taking steps to check that the exit screening from ports of departure is robust. The UK is sending observers to those areas this week to ensure that passengers are being screened in line with WHO guidance. Where we have doubts that that is the case, we will consider screening passengers on specific flights on entry to Britain, including asking them to make a signed declaration that they have not been in close contact with SARS cases or have symptoms themselves.
	"Thirdly, I intend with my right honourable friend the Secretary of State for Transport to ask airlines returning passengers from SARS-affected areas to distribute information along with boarding cards. We also intend to discuss with the airlines other means of informing passengers about SARS on all long-haul flights from affected areas.
	"Fourthly, I will be reminding all airlines of their obligations to provide a declaration of health when a plane arrives in the UK. Fifthly, next month, at the World Health Assembly in Geneva, I will be meeting other health ministers to discuss whether there are any further measures above and beyond those already taken which could be put in place at a European or international level.
	"The whole House will want to pay tribute to staff in the NHS for their prompt, effective and successful action in responding to SARS. The best advice I have is that the UK, alongside many other countries who have experienced a very low incidence of SARS to date, may see further cases over the months ahead. Given the importance and ease of global travel, we cannot isolate ourselves from the rest of the world. Given the complexity of detection, the test of success of our disease control policy rests on keeping to an absolute minimum the spread of the disease and successfully treating those affected.
	"To date the NHS has met that challenge because of the precautionary but proportionate approach taken. We will continue to be vigilant. We will take whatever means are necessary to safeguard the public health of our people. And we will continue working with the international community to tackle and, in time, defeat this serious disease".
	My Lords, that completes the Statement.

Earl Howe: My Lords, I begin by thanking the Minister for repeating the Statement and by saying that I very much welcome both the fact that the Statement has been made today and, in broad terms at least, its contents. I say "in broad terms" only because, as the Minister might expect, there are several questions that arise from what she has said, which I hope she can answer. I will not take long over them.
	One of the phrases that perhaps caused me to raise an eyebrow very slightly was the statement that SARS poses a low risk for people in this country. Based on the number of cases that we have so far experienced in the UK, that might be taken as a fair judgement. However, as the Minister herself said, the disease is a serious one and there is so much about it that we do not know that I should have thought that it was not yet possible to quantify the extent of the risk. We read only today of new precautions being taken in Taiwan, South Korea and the Philippines, and the Minister will I am sure confirm that the spread of SARS is far from being under control in many parts of the Far East.
	I recognise that the Government have acted in accordance with advice from the WHO and the measures that they have taken are sensible and in the main reassuring. It is worth saying that we owe a great debt to the professionalism of the NHS staff who have successfully prevented the six SARS patients in this country from infecting anyone else. Nevertheless, I was always brought up to believe that within reasonable limits, and unless there is a good reason to the contrary, governments should adopt the precautionary principle in dealing with any threat whose cause is not fully understood and where the risk is for practical purposes unquantifiable.
	The Minister said that the Government had decided not to make SARS a notifiable disease, at least for the time being. I am no more in favour of bureaucracy than she is, but the 1984 Act is there for a purpose. It is there to enable the authorities to act quickly should they need to protect public health. The value of making SARS notifiable is, as I suggested the other day when we debated this topic, that it would enable the authorities compulsorily to detain those suspected of incubating the disease at port of entry or indeed anywhere else.
	The 1979 regulations do not, as I understand them, give the authorities more than a limited scope to examine a person, and then only in certain situations. That might not be sufficient in some circumstances. I take the point she made that most people do not refuse treatment when offered it. Nevertheless that is a proposition which takes a lot for granted when we consider someone who presents with a high fever and all the symptoms of SARS. Does such a person act rationally? Is an infected asylum seeker susceptible to polite requests to go to hospital? If the Government's argument was valid, there would be no need to make any disease notifiable, since everyone with a dangerous and infectious condition would always willingly submit themselves for quarantine and treatment when asked to do so. Frankly, I find it hard to understand why the Government do not take the necessary powers now, as a precautionary measure, to ensure that those powers could be used immediately if required. It is a simple parliamentary process which we on this side of the House would totally back.
	Screening people by means of a questionnaire is a good idea but it is not of course guaranteed to yield substantive information, because people do not necessarily know if they have been in contact with someone infected with SARS. Similarly, exit screening at ports of departure abroad is welcome; but we have no means of knowing how efficiently or effectively it is being carried out. I am glad that observers are being sent to the relevant areas of the world to ascertain just that point.
	The Minister correctly mentioned that there is no test to diagnose SARS. Nevertheless, I wonder whether the Government have considered using the Actin Serum screening test which, though non-specific, acts as an early marker for infection when a disease is being incubated. If they have not, I should be grateful if the Minister would look into this idea and let me know what conclusion has been reached.
	I welcome the precautionary approach taken to the admission of foreign recruits into the NHS and that the start-date of such appointments from SARS affected areas is to be deferred. Can the Minister say how long the deferral will last? The Minister mentioned that confirmed UK cases of SARS have so far numbered six. Can she confirm that there are no other suspected SARS cases currently being treated in NHS hospitals?
	Reverting to the situation in China, can the Minister confirm that the Chinese authorities are now co-operating fully with officials from the WHO as regards up to date information on the SARS outbreak? Have WHO officials been allowed to visit Guandong province to speak to doctors and nurses on the ground?
	The key to the future, as the Statement emphasised, will be vigilance and flexibility. There is just a chance that a global pandemic can be avoided if governments across the world take the right measures in a timely fashion. I am pleased and reassured our own Government have taken the measures described today. However, as I have indicated, ideally I should like to see them going a little further.

Lord Clement-Jones: My Lords, I join the noble Earl, Lord Howe, in thanking the Minister for repeating the Statement made in another place. I do not believe that any of us, when commenting on the Government's Statement, underestimates the seriousness of SARS. It is a matter of great concern. It is a major issue, not only with huge potential public health consequences, but as has been seen, huge economic consequences as well. In that context I welcome the Statement. It deals with many points of public concern and seems to be soundly grounded in both WHO and domestic advice from the Chief Medical Officer and the new health protection authority. We on these Benches believe that crises such as this do not lead to political point scoring or that politicians start second-guessing public health professionals.
	I pay tribute not only to NHS staff, who, as the noble Earl, Lord Howe, pointed out, detected the six cases, but to the new public health authority. As the Minister knows, I have had my doubts about the nature of the reorganisation, but I have great confidence in our public health professionals—particularly in Colindale's particular expertise. I am pleased that they have taken a full part in international collaboration.
	It is important in such major crises for Ministers to provide reassurance and the reasoning behind the decisions that are made, and to be seen to be taking responsibility. It is particularly important in that context, because information is an important antidote to panic—to public concern. It is a pity that the Secretary of State did not have a press conference during the Easter Recess when Parliament was not able to have a Statement from him. There are circumstances when political visibility is important.
	However, we on these Benches believe that the Chief Medical Officer and the World Health Organisation have struck the right balance. For instance, we do not yet see the need for enforced quarantine; that is, isolating people who are symptom-free. We also understand the good, practical reasons against compulsory notification, but I want later to raise a caveat in that respect.
	That said, I want to take the opportunity to ask the Government a number of questions. First, in the view of the Chief Medical Officer, at what point does the need to notify in terms of the seriousness of SARS outweigh the bureaucracy involved in the 1984 Act? Secondly, have the Government assessed whether adequate resources are available for infection control teams? Clearly, those teams will be of great importance to prevent the spread of infection of SARS.
	Thirdly, will the Government consider giving much more comprehensive information to travellers not only about health issues, but also about the rights of cancellation and the complicated matters which arise from insurance? The advice currently being given by agencies, tour companies and airlines varies widely and that is a matter of concern to travellers.
	Furthermore, I hope that the Minister will take the opportunity to comment on the demand of the Conservative Party for health checks for each and every immigrant. The noble Earl, Lord Howe, did not mention that, but as the Minister will have seen from today's Evening Standard, that is a wholly opportunistic demand. It admits that they would not reduce the spread of SARS. Is it not the case that health checks should depend on where you come from and not who you are?
	Will the Minister explain what advice has come from the Chief Medical Officer regarding the declarations which might be requested in the case of certain flights from certain destinations? What is the legal basis for that? For instance, can passengers be forced to sign the forms or are they purely voluntary in the circumstances?
	Finally, regarding bureaucracy and returning to the 1984 Act, does not our public health legislation need an overhaul? Could not that bureaucracy be counter-productive if powers are not taken to have compulsory notification in these circumstances? Cannot the new health Bill, which begins its passage through another place, be used to update our law so that it will be fit for the purpose in pandemics such as we are now facing?

Baroness Andrews: My Lords, I am grateful to both noble Lords for the support they have given the Statement and government policy and for the confidence they have expressed for the excellent work being done by all parts of the health service involved in fighting the epidemic: the researchers at Colindale; the health staff who worked with the six cases to isolate and treat; and the doctors and public health networks involved in surveillance. They are doing a magnificent job and we should give all credit to them.
	The noble Earl, Lord Howe, began by asking why we were so confident that we could say that the NHS was a low risk. Perhaps I may add the caveat that there is no room for complacency in our response and in our language. But the point is that the public health surveillance system is being tested. It proved itself to be very robust in the past and it is proving itself to be very robust and effective at present. We have responded quickly and comprehensively and we have also responded proportionately to the challenge. We believe that we have the best scientific and medical advice and that the situation is well in hand. We are doing all we can to control the spread. The six "probable" cases is the best evidence that we have of that.
	The noble Earl also asked about the powers of the 1979 regulations and whether we ought to move immediately towards notification. First, we believe that the 1979 regulations give us sufficient powers, but that pro-active surveillance, which is working, is a better response than a reactive notification system. However, I stress that if we receive advice from the Chief Medical Officer that we should move to notification because we need extra powers to enforce isolation where people are not prepared to commit themselves to voluntary isolation, we will consider that most carefully. At the moment, out best advice is that we are making the right response. It is appropriate and we will continue to monitor it.
	In terms of exit screening, we are sending our HPA experts, or qualified people, to examine screening in countries where SARS is active. The problem for us as a receiving country is that we do not have a screening test. No test works and it may be some time before we can develop one. In the absence of that, we are left with questionnaires, which some countries are using, to invite people to provide information about any potential contact or symptoms. We will monitor the situation and if it is necessary for us to take that step, we will certainly consider it.
	The noble Earl also asked about the start date of NHS staff coming from infected areas and whether I could give him a timeframe. They will be given a breathing space of 14 days before starting work.
	The noble Earl asked about prospective cases. Our best evidence is that we have six probable cases who are doing well and have left hospital. A further 50 suspected cases are under investigation and we will follow them with interest. Of course, there may be further suspected cases but all the evidence suggests that the surveillance system is picking them up and they are being treated immediately. Furthermore, the Chinese authority is co-operating with the WHO.
	I turn to the points raised by the noble Lord, Lord Clement-Jones. I am pleased that he recognised that the Government have been open. Since the beginning of the epidemic, we have made a serious attempt to make available as widely as possible accurate information. That is so not only in terms of the political discourse but also information from scientists at Colindale, the practitioners and the Chief Medical Officer. There has been a legion of interviews, reports and exchanges and if one listens to the "Today" programme on a regular basis, one realises that we are well-informed about how the public health faculties and researches consider things are going.
	The noble Lord asked about the balance between changing bureaucracy and notification. Again, we must be advised by the scientific and medical experts. When they tell us that there is a case for notification irrespective of the potential delay we can move fairly fast. But we will be guided by them and are listening carefully to them.
	In terms of resources for infection control teams, all appropriate and necessary resources must be provided. In relation to the information to travellers, the noble Lord will know that information leaflets and posters have been placed in all our international airports. They are being distributed in different ways. We are examining the possibility of providing information leaflets on planes and the best way of doing that. The noble Lord made an interesting suggestion that we might look further at advising travellers about, for instance, rights of cancellation and insurance. I shall take that back to the department for investigation. I agree with his comments about the Conservative Party and immigration, and I also agree that the crucial question is where people come from and not their status or condition. SARS is essentially a disease of contact and the critical advice is that that is in those countries where SARS is spreading.
	In terms of the advice from the CMOs on the form of the declaration, we are in the process of considering how that could best be effected if we had to make that decision. I would have thought that, given the seriousness of the disease, most incoming passengers would not have a problem in filling out that declaration. Clearly, we need to consider the possibility that there might be some who refuse. I do not have an answer to that at present. The noble Lord's final question concerned the overhaul of the 1984 Act. Getting Ahead of the Curve, the famous document on communicable disease, pledged that we would consider the Act and that still stands.
	I thank noble Lords on the Front Benches for the temperate and thoughtful way in which they have responded to the Statement.

Lord Chan: My Lords, I welcome the Statement. However, there are two issues which have not been specifically discussed. The first concerns the quarantine of students from South East Asia who arrive here. In schools in Knutsford and the Isle of Wight Chinese students have been put into quarantine. What is the advice regarding that? The Chinese community are also practising that as regards people who come from the countries identified. In other words, anyone who comes from such areas is not welcomed in homes, restaurants, and so forth. Can the Minister give any advice as regards that issue? Associated with that is the issue of whether we welcome people coming for conferences from such parts of the world.

Baroness Andrews: My Lords, in general we have to respond to persons coming into the UK in the same way, irrespective of the reason for their coming here. As to the emphasis we place on them, if they are liable to have been in contact with SARS sufferers or if they have any symptoms, obviously the appropriate steps must be taken. However, when they are symptom free, whether they are children, students or people coming to a conference, we have exactly the same problem irrespective of why they are coming into the UK.
	As regards school students, on 14th April the DfES wrote to all chief education officers in LEAs and drew their attention to the Government's advice to boarding schools and other institutions. The advice was that, if symptom free, students returning from SARS-affected countries are not a risk to others and should be allowed to continue their schooling as normal, but they are advised to seek medical advice if they develop any symptoms suggestive of SARS up to 10 days after their return. They should certainly not return to school if they have any symptoms. In exceptional circumstances where a student has come into close contact with a known SARS case, it would be prudent if the student's health was monitored for 10 days. Different boarding schools have put in place different strategies. It is largely their privilege to do so, and different rules will apply. However, that is the advice being sent out by the DfES in this instance. As regards conferences, the advice will depend entirely on individual circumstances. I suggest that there should be a case-by-case judgment.

Lord Soulsby of Swaffham Prior: My Lords, this new "plague", if we can call it that, emphasises the concept that the price of freedom is eternal vigilance. Whether, indeed, there has been a lapsus in vigilance as a result of SARS coming out of China we shall not know for some time. We know that there is frequently a spontaneous re-assortment of genes in viruses such as the influenza virus but this is not a straightforward influenza virus.
	Can the Minister tell the House the latest information on the origin of the SARS virus in China in terms of whether it is animal, human or animal-human? What are the active surveillance undertakings being carried out by the British Government on this virus and other viruses coming out of China in food materials, animals and, indeed, human and animal products which might give us a lead as to what might come next beyond the SARS virus?

Baroness Andrews: My Lords, I am much in awe of the noble Lord's expertise in this area. We do not know the origin. We do not have the science to tell us whether there has been a transmission across species from animal to human. It is hoped that over the next few months, or maybe longer, we shall begin to understand that. As regards our usual surveillance undertakings, I understand that the structures presently in place to protect us at points of entry, whether for infected food or people, would apply as rigorously to China and to the kind of circumstances described by the noble Lord as they would do normally.

Lord Campbell-Savours: My Lords, my noble friend referred to the fact that the UK is dispatching personnel to departure points overseas in areas at risk to monitor the screening arrangements for travellers returning to the United Kingdom. If that is the case, are other countries doing precisely the same? If so, should there not be a co-ordinated effort to continue to monitor all flights by a single officer representing an international authority, even if it means countries increasing the available budget of that organisation, whatever it might be?

Baroness Andrews: My Lords, as regards our own efforts to work out how effective screening programmes are in other countries, we alerted our embassies in areas in which relevant airports are sited. We are collecting information from embassy officials, and we shall build on that information when our own specialists go out. I do not know what other countries are doing. However, one of the features of this response has been its global dimension. For example, there are daily conference calls between the WHO and all the countries affected to update information and ensure that everyone is sharing as much knowledge as possible. There may well be some exchange of information about how screening can best be developed and improved. Certainly, screening at ports of exit was done specifically on WHO advice.

Baroness Masham of Ilton: My Lords, is the virus which is travelling round the world mutating? If so, will that not make it much more difficult to find a vaccine in due course? What is the particular advice given to health workers when looking after SARS patients? If patients, or provisional patients, are isolated in their own homes, surely such information should be made available to the general public so that they know what to do if someone develops SARS.

Baroness Andrews: My Lords, I am informed that all viruses mutate, or are very likely to mutate. The question is whether they mutate significantly and we do not know; the jury is out. However, the scientific consensus is that this is a coronavirus, so we have made progress in at least identifying that. As regards health workers, the advice which has gone out today from the Chief Medical Officer to chief executives reinforces the standard practice which we give in each of these situations as they arise. It is stringent advice concerning the importance of control of infection. It emphasises early recognition of suspected cases, rapid isolation, reducing the risk of cross-infection, high quality sterile practice, no inappropriate re-use of medical devices, and so forth.
	The noble Baroness asked about people who may be at home with SARS. From the cases that we know and the surveillance practice we have seen, suspected cases have been picked up extremely quickly and are being investigated in hospital. I do not have any information concerning patients who may be at home in that situation.

Lord Brooke of Sutton Mandeville: My Lords, the Statement makes wide reference to the occasions when the Government are following the advice of the WHO. Can the Minister shed some light on how much universal advice the WHO gives to countries and how much tactical freedom it allows individual countries to make their own determination, as presumably in our own case with notifiability?
	Secondly, the late Lord Phillips of Ellesmere was wont to remark that there was no way that a country of our size could maintain a position on the frontiers of every aspect of available science, simply because of resources. I have a highly simplistic question: can the Minister indicate on a scale of one to 10 where our country presently stands in terms of strengths in the disciplines challenged by SARS?

Baroness Andrews: My Lords, the noble Lord asks two very challenging questions. As far as I know, the advice put out by the WHO is universal as to the processes that contain the spread of the disease, whether it is through advice on screening, on treatment and so on.
	Each country has its own political culture on issues such as notifiability. I presume that a fair amount of discretion will be built into that. Certainly, our medical and scientific experts would, I am sure, consult—as they do on a daily basis with WHO—should they think that notifiability is an important step forward. It is difficult to draw tight boundaries here. There is a great deal of communication and exchange. This is a pragmatic situation that is managed nationally and in terms of the WHO.
	Regarding where we are and our position in the research league—whether virology, communicable diseases or whatever—the reputation of our Central Public Health Laboratory in Colindale is excellent. It has made a significant contribution. It is one of the 11 laboratories world-wide which have been involved in the research. I think that we can be extremely proud of our reputation and our effectiveness in that field.

Lord Turnberg: My Lords, while it is obvious and clear that we must take every precaution, I wonder whether the risk of this disease has been somewhat exaggerated, compared with, for example, most other infectious diseases. My question is: what information have we regarding the relative risk of infection and of death from this disease compared with, for example, TB, hepatitis and influenza in China, in Singapore, Hong Kong and in the UK?

Baroness Andrews: My Lords, I cannot give comparative figures. Professor Roy Anderson, who is an international expert in this area and an epidemiologist, in his most recent research—which I do not think has been published, but which was quoted on the radio this week—said that the disease is possibly less infectious than we thought although it might have a higher mortality rate. The crude death rate seems to be between 5 per cent and 6 per cent. Professor Anderson was looking at core morbidity factors and other factors which might have pushed the death rate up for elderly people. That appears to be the most recent authoritative research on these issues. I shall happily research the second point raised by the noble Lord and write to him.

Sexual Offences Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Allenby of Megiddo) in the Chair.]
	Clause 41 [Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder or learning disability]:

Baroness Noakes: moved Amendment No. 224:
	Page 19, line 42, leave out paragraph (a).

Baroness Noakes: I rise to move Amendment No. 224 and to speak to the other amendments in the group. The Committee will be relieved to hear that I shall not in fact be speaking on an individual basis to all 22 amendments. They are similar amendments to various clauses which seek to establish the circumstances in which the Government would regard it as appropriate for the relevant offences to be tried on a summary basis rather than by indictment.
	We have already considered several of these amendments in Committee. I have agreed with the suggestion made by the Minister's officials that, in order to speed up the deliberations of our Committee, I would group the majority of the remaining amendments and accept from the Minister a written reply or replies covering them.
	Perhaps I may remind the Minister that I shall be seeking from him clarification of the types of circumstance for each offence which are regarded as so minor that a six-month sentence or a fine would be appropriate. In particular, I hope that he will direct his replies to those cases where the corresponding penalty on conviction on indictment would result in a potentially significant sentence—for example, the maximum determinate sentence. I am trying to find out whether there are minor versions of what would otherwise be very serious offences.
	I also seek to ascertain whether the Government intend to issue any guidance on the approach that they expect prosecutors to take, and, if so, what form that guidance would take and when it would be issued. As I, and possibly other Members of the Committee, will want to consider the Minister's reply in good time for Report, I have asked him to reply no later than the day after the Committee concludes. I hope that he will agree to provide the reply by that time. I understand that the Minister will copy his letter to Members of the Committee and will place a copy in the Library. If the Minister can confirm those arrangements, I shall be pleased to withdraw Amendment No. 224 and not to move the remaining amendments in the group. I hope that other noble Lords will agree that this is a convenient way to proceed. I beg to move.

Lord Rix: I should like to join the noble Baroness, Lady Noakes, in stressing the need for the Crown Prosecution Service not to take the softer option of a summary conviction. Unfortunately, Mencap has been only too aware of too many cases in which the criminal justice system has not been geared up to take seriously the evidence of those with a learning disability. A crime may be reported, but it often comes to nothing because of the insensitivity and the rigidity of the system. Negative assumptions are often made about the ability of the person with a learning disability to give evidence, while the adversarial nature of the court acts as a barrier to the delivery of justice.
	That is the case in spite of the distress and grief suffered by the victim and his or her family, and the sometimes painstaking investigations by police or others. Too many offenders have gone free or have been given lighter sentences, and too many people with a learning disability have suffered unnecessary humiliation as a result of failures and shortcomings in the criminal justice system.
	While I welcome the important measures introduced in Speaking up for Justice, which provide extra support for vulnerable witnesses and victims, I should like to make sure that legislation further enforces the view that people with a learning disability are regarded as credible witnesses.
	I hope that the Minister will tell us specifically when he perceives a summary conviction is likely to be used, and I seek assurances that guidance will be produced so that all reasonable steps are taken to ensure that the right conviction is pursued.

Lord Bassam of Brighton: I am most grateful to the noble Baroness for telegraphing her approach to the matter. I rise simply to confirm that we shall endeavour speedily to publish guidance and to ensure that the circumstances in which we would anticipate cases being tried in the lower court are made clear. It will be a matter for careful consideration by the CPS in the guidance it gives the courts but, ultimately, it will be a matter for the courts.
	We take these matters very seriously; I have no doubt that our colleagues in the Courts Service will also take them very seriously, will weigh up the appropriateness of each individual case to suit particular circumstances, and ensure that the most appropriate court deals with offences. There is extreme sensitivity about these matters. We will try to clarify the circumstances in which such cases are tried—perhaps in the lower court rather than a higher court—to the satisfaction of the noble Baroness by Report. I cannot give her a precise date or time from the Dispatch Box now, but in the interests of brevity, I think it best that we leave the matter there. We will reply in writing to the points raised by the noble Baroness.

Baroness Noakes: I thank the Minister for that reply. I hope that when his officials prepare his letter, they will also take on board the points made by the noble Lord, Lord Rix, about people with learning disability. I emphasise to the Minister that it would be fair if we had the responses by the end of Committee. I should not want to labour on Report with a large number of unnecessary amendments taken one at a time. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 41 agreed to.
	Clause 42 [Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception]:
	[Amendment No. 225 not moved.]
	Clause 42 agreed to.
	Clause 43 [Care workers: sexual activity with a person with a mental disorder or learning disability]:

Lord Thomas of Gresford: moved Amendment No. 226:
	Page 20, line 29, at end insert ", and
	(e) A knows or could reasonably be expected to know that B has a mental disorder or learning disability

Lord Thomas of Gresford: The issue raised by this group of amendments concerns the position of a care worker compared with anyone else who indulges in sexual activity with a person with a mental disorder or learning disability.
	Clauses 33 to 42 in each case place on the prosecution the burden of proving that the offender knew or could reasonably be expected to know that the other person had a mental disorder or learning disability and because of it was likely to be unable to refuse. The clauses that deal with care workers, on the other hand, change the burden of proof, so that it is necessary for the defendant to prove that he did not know that the other person had a mental disorder. The burden then switches back to the prosecution, if he succeeds in proving but he did not know that the other person had a mental disorder, to prove that he could reasonably have been expected to know.
	I have already addressed the Committee at length about the confusion that is bound to arise from shifting the burdens of proof—explaining it to the jury, and so on. It has been explained to me that the Human Rights Act 1998 and the European convention require that manner of proceeding. Why is it thought necessary to draw a distinction between the ordinary person and the care worker in such a technical matter concerning how the burden of proof rests on the defendant? That is the issue. I should like an explanation of that before I consider whether the matter is worth pursuing.
	I come from Wrexham, so I know what happened in North Wales. A care worker could well be charged with offences against someone for whom he is not a care worker—counts one to 10, perhaps—while counts 11 to 20 could be in respect of his activity as a care worker and concerning someone in his charge. The problem that then arises is in directing a jury that in the one set of offences, its approach to the burden of proof is to be this, but in the other set of offences, because the person suffering from a mental disability is under his care, it must have a totally different approach in coming to its conclusions.
	That is a recipe for real confusion. I see no reason why the Government should not simply direct the courts that if a person is a care worker and the person under his control suffers from a mental disorder or learning disability, the sentence should be increased. I see no reason for setting out some nine or 10 clauses simply to deal with shifting burdens of proof.
	As I said, this is a probing amendment. I want to hear what is the Government's thinking behind the provision. I do not think that they have fully appreciated how difficult it will be to explain precisely how the clauses will work. I beg to move.

Lord Campbell of Alloway: I support the amendment. I agree with everything that the noble Lord said about the shift in the burden of proof and about the problems of directing a jury. I shall be very short, because I shall have much more to say on the matter when we debate Amendment No. 397A. For the moment, on the shift in the burden of proof, it is thrust on the accused to establish that his conduct matches that of a reasonable person—I am using simple English. Just imagine: there is the jury. Do the members of the jury imagine for a single moment that the man in the dock, charged with rape, is their concept of that abstract, hypothetical norm, a reasonable person? Of course not. So how will they approach the matter? What direction is the judge to give them? That is the acid test. Must they convict if the man is not a reasonable person, in their assessment at the time—an argument that is all but impossible for counsel to adduce in a reasoned fashion?
	Let us consider the amendment. Suppose that the man in the dock is a person with a mental disorder or learning disability. Need I say more? Is that not enough to support the amendment?

Lord Falconer of Thoroton: With the greatest respect to the noble Lord, it is not enough. The noble Lords who have spoken have forgotten what happens in practice. Many people engaged in caring for people with a mental disability are absolutely first class and spend their time devoting themselves carefully to the care of those in their charge but, as Setting the Boundaries states:
	"We heard that many learning impaired people regarded sexual abuse as a normal and expected part of life—a devastating concept. There are many loving and dedicated people working in care. Others, however, find that the provision of care provides a unique opportunity to those in their charge for their sexual gratification with little chance of discovery or effective redress".
	That point has been made to me privately by the noble Lord, Lord Rix, and those who work on behalf of those people. It has been forcefully made to me. I accept the view that, although the offences of sexual activity with people unable to consent and sexual activity brought about by threats or inducement get you some of the way there, they do not get you all the way there. They do not cover cases where you can see a care worker abusing somebody in their charge, and where that person cannot give evidence that would convince a court. That is why these offences are in their present form and why they are included in the Bill. The noble Lord, Lord Rix, made the point absolutely clearly to me. He has pleaded that they should not be regarded as some sort of residual offence but as a vital part of the protection.
	The noble Lords, Lord Campbell and Lord Thomas, put the lawyers' points with great effectiveness. But, because they do not trust judges and juries enough, they exaggerate how complicated the offence would be. Would it be complicated for a judge to say to a jury, "If you are satisfied that there is a relationship of care between the defendant and the victim—that means that the defendant is involved in the care of the victim—then it is for the defendant to satisfy the jury that he did not know there was a question of mental impairment"? That does not seem remotely unreasonable. It seems to reflect the common sense of the position. Because of the ECHR position, we are advised that the burden of establishing the reasonableness required—that if the defendant did not know he should have known—must be on the prosecution.
	With respect, the reason for the distinction from sexual activity where there is no capacity to consent or sexual activity relying on inducements and threats is that in those earlier sections there is no relationship of care, whereas in these sections there is one. We are saying that once that relationship is established, and the sexual activity is established, it should be for the defendant to establish that, despite the relationship of care, he did not know the precise circumstances of the victim. With the greatest respect, that seems a very sensible way of proceeding.

Lord Thomas of Gresford: Obviously, I shall consider with some care what the Minister has said. However, it seems that he has not dealt with the fact that the person in the care of the care worker is a matter that goes to sentence. That is essentially the difference.

Lord Falconer of Thoroton: The question asked was what is the difference between the earlier offences, where there is no relationship of care, and ones where there is that relationship. It is because there is a relationship of care that the burden then moves. If you are caring for somebody, the reasonable assumption is that you will know the condition of that person. That is why the distinction exists.

Lord Thomas of Gresford: I do not, therefore, see why it is at all difficult for the prosecution to prove it. They must prove it in relation to anyone else. It is easier to prove it if the person concerned is a care worker and has the victim in his charge. It is much simpler. As the noble and learned Lord said himself, the assumption is that the care worker would know anyway. That is as far as the prosecution must go—they must simply prove it. I shall consider what the Minister says. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 227 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 228:
	Page 20, line 35, leave out subsection (3).
	On Question, amendment agreed to.

Lord Falconer of Thoroton: moved Amendment No. 229:
	Page 20, line 36, at beginning insert—
	"(3A) A person guilty of an offence under this section, if the touching involved—
	(a) penetration of B's anus or vagina with a part of A's body or anything else,
	(b) penetration of B's mouth with A's penis,
	(c) penetration of A's anus or vagina with a part of B's body, or
	(d) penetration of A's mouth with B's penis,
	is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
	(4) Unless subsection (3A) applies,"

Lord Falconer of Thoroton: I beg to move.

Baroness Noakes: Have these amendments been spoken to?

Lord Falconer of Thoroton: This amendment is part of a group and must be debated with the amendments of the noble Lord, Lord Adebowale. As the noble Baroness, Lady Noakes, was about to point out, these amendments go with those relating to penalty in respect of the offences committed by care workers.
	Amendments Nos. 231 and 231, which were tabled by the noble Lord, Lord Adebowale, emphasise the seriousness of offences where a care worker engages in sexual activity with someone in his care who, by virtue of his mental disorder or learning disability, is in a vulnerable position and could be improperly influenced into sexual activity by those who care for him. If that influence goes beyond that which is implicit in the relationship of care and involves inducement, threat or deception such that the individual's ability to choose freely whether to engage in sexual activity is compromised, or if the individual lacks the capacity to consent, other offences can be charged that carry the penalty that the noble Lord, Lord Adebowale, seeks.
	Moreover, we have sought to define the relationships of care widely. A series of government amendments that we shall come to later widens the scope further to ensure that those providing care, assistance or services in connection with the victim's mental disorder or learning disability are included. We take the view that a maximum penalty of life imprisonment in those circumstances, as the noble Lord proposes, goes too far and is disproportionate, having regard to other offences both in this Bill and beyond.
	We are sympathetic to suggestions that the penalties for this clause are too low. Our amendments would increase the penalties to 14 years when penetration is involved and 10 years when it is not. We have gone quite a considerable way, but we think that a balance must be struck. In the light of that, I very much hope that the noble Lord, Lord Adebowale, will be able to withdraw his amendments.

Lord Adebowale: I am pleased that the noble and learned Lord has introduced an amendment that raises the issues covered in Amendments Nos. 231 and 233. I wish to speak to both amendments. They address points raised by Turning Point, Mencap, Respond and others. I pay tribute to the noble Lord, Lord Rix, who raised the important issue when he introduced his own Bill last year. I am also indebted to the Minister for responding very positively to the concerns raised. Given the importance of this issue, which is central to the Bill, I wish to set out my views in some detail.
	There are many people with learning disabilities living in a care setting who experience abuse as a norm and, sadly, expect it as part of their life. Care environments may offer opportunities for abuse without detection. The fact that one party is in a position of power can influence the availability of the other party of consent. Some staff members may exploit their power to ensure compliance to sexual acts. For this reason, compliance to sexual acts should not be confused with informed consent. Given the position of trust and the relationship of care, such behaviour is as serious as having sex with a person who cannot consent to sexual relations. In addition, cases which have come to court recently have shown that force is unnecessary. The absence of force is more a barometer of the power staff hold over people with learning disabilities rather than a reflection of a lack of negative intent on behalf of the staff perpetrator. People with a learning disability are often powerless. They tend to be under control rather than having the opportunity to exercise control in their lives.
	I support all the recommendations to strengthen the law to protect people with learning disabilities who live in residential accommodation or similar institutional care. Clearly, there is a social evil that has to be dealt with by the criminal law.
	Research shows that there is a bias towards offences in a service setting—it is a dangerous place as far as sex crime is concerned. It is appropriate for additional protection to be put in place to cover individuals who require care and support and are therefore vulnerable to exploitation by those providing that care or support. For example, in one case a woman aged 22 was raped and sexually and physically abused for more than a year by a male care worker. However, the judge ruled that the woman was not capable of giving evidence and dismissed the trial. I need not inform noble Lords of the damage this caused to the woman and her family.
	Abuse within a care setting has many attributes. It is often invisible and warning signs are often ignored. It is characterised by the failure of care staff to concern themselves with abuse that takes place.
	My amendment and the Minister's amendment serve to distinguish between acts of penetration and other forms of sexual activity, including sexually inappropriate acts such as rubbing up against someone's private parts through their clothes for sexual gratification. Both should be an offence but the former is obviously more serious and should carry a more serious penalty, which my amendment, and the Minister's amendment, seeks to achieve. I am pleased that the Government have moved on this issue and responded to issues raised by Turning Point and others. Some good progress has been made.
	I want also to address other issues raised in Amendments Nos. 229 and 232. This goes a long way to answer my concerns raised at Second Reading about the current proposals on sentencing. At Second Reading I referred to the Longcare case in Buckinghamshire. In the residential home there were some people with a learning disability with no communication skills and who could not consent to sexual relations. There were others who had the capacity to consent but who were scared to speak out against people in authority. They were forced to comply because of the authority such people held or because of the relationship of trust. Both groups of people were forced to undress and watch pornographic videos. They were also forced to have sex with one another and were raped and physically assaulted. All 50 residents were in a relationship of care and suffered serious abuse at the hands of the notorious Gordon Rowe and his staff at the two homes.
	It would not be fair, just or equitable if the law were to distinguish between different people in a home. I have argued that it would be wrong if the law levelled a life sentence for those who lacked the capacity to consent but gave a shorter sentence for those who had some capacity but who clearly did not give free agreement. This is particularly the case where both groups are in the same relationship of care or trust and suffer the same pain and distress. Perpetrators should not receive shorter sentences and an offence should not be downgraded in cases that clearly amount to rape.
	I am concerned that the term "abuse" can be misleading. It often minimises the impact of incidents that are often serious offences. I hope the noble and learned Lord could agree that sexual activity that took place at Longcare is better described as rape and sexual assault rather than,
	"consensual sexual activity, which is nevertheless abusive".
	The amendment does not yet achieve complete parity with the sentencing provisions for people who cannot consent. However, it is a welcome improvement. It represents a doubling of the sentence for the most serious crimes and the Government should be commended for responding positively to concerns raised by my organisation, Turning Point, and others. I hope the Minister can be persuaded to go one step further and have a maximum life sentence for the most serious breach of trust offences.

Lord Astor of Hever: We on these Benches fully support the government amendments. They make clear that anyone guilty of the offence in Clauses 43, 44 and 45, where the sexual activity is penetrative sex, is liable on conviction on indictment to a sentence of 15 years. In all other circumstances, the penalty when the prosecution takes place before the Crown Court has been raised from seven to 10 years. This increases the severity of the penalty and differentiates between cases of rape and serious sexual assault and other forms of sexual activity. We welcome this. I am sorry to disappoint the noble Lord, Lord Adebowale, but we cannot support the amendments in his name. We agree with the Minister that they go too far. If rape has occurred it can be prosecuted under Clause 1. The Government have made the clauses more severe by changing the maximum penalty from seven years to 14 years in the case of penetration and 10 years otherwise. That is sensible.

Lord Rix: I listened carefully to the arguments put forward by the Minister but I am still not convinced. While I welcome the increase to 14 years, I support my noble friend Lord Adebowale in his amendments which would ensure that the offence carries a maximum life sentence rather than that proposed by the Government.
	I wholeheartedly welcome the willingness of the Government to listen, but I fear that the new provision does not go far enough. I hope that the Minister is minded to accept the amendments of my noble friend Lord Adebowale, if not at present, certainly at the next stage of the Bill.

Lord Thomas of Gresford: On these Benches we support the government amendment and regrettably take issue with the noble Lord, Lord Adebowale, who seeks to impose life imprisonment for an offence where there is consent. The essential difference between Clauses 33 and 43 is that in Clause 33 the victim is unable to refuse because of mental disorder or learning disability. That is not the case in Clause 43. As the noble Lord, Lord Astor, said, if having the capacity to refuse the victim does refuse, it is to be charged as rape, with a life sentence. If the person consents, that is a different matter and I believe that 14 years is the appropriate maximum.

Lord Campbell of Alloway: I beg to support the amendment of the Government. It is an entirely proportionate provision.

Lord Falconer of Thoroton: The arguments are perfectly clear to everyone in the Chamber. I understand what the noble Lords, Lord Rix and Lord Adebowale, are saying about the extent to which abuse can go effectively inadequately punished, but there must be a proportionate response. We think that this is broadly the proportionate response.

Lord Carlisle of Bucklow: Perhaps I may ask the Minister a general question which applies to the whole of this Bill. I understand that the effect of these amendments is to take Clause 43 and divide it between acts which include penetration and those which do not and to make different penalties depending on whether there is penetration or there is not penetration.
	What worries me is that in relation to the whole Bill we seem to be going into enormous detail in a way which is really taking over the duty of the Lord Chief Justice in giving guidance on what the type of sentence should be. Rather than saying that there is a difference between a 14-year maximum or a life maximum, should we not as Parliament say that these are such serious offences that in their gravest kind they would require a life sentence and that we should leave it to the Lord Chief Justice and the judiciary to set out the type of sentences that they consider appropriate, rather than attempt to distinguish between the different types of offences as we do in this Bill at very great length?

Baroness Blatch: I have one point which is actually more of a question. The noble Lord, Lord Adebowale, had a point. I accept what the noble Lord, Lord Thomas of Gresford, said about someone who is deemed to have the capacity to refuse and consents and that that should not be considered rape. But, if they do not consent, the person can be caught under Clause 1 as my noble friend said. That is right.
	However, we are talking about a very vulnerable group of people who are in a particular relationship. My question is: what flexibility do the courts have in a situation where consent is deemed to have been given and where it is deemed that the person had the capacity to consent, but that actually the nature of the relationship is such that the carer is all powerful and although the person may have the capacity to say, "No", they do not have the emotional ability?
	If something along the lines suggested by the noble Lord, Lord Adebowale, is not accepted, what scope does the court have to explore the relationship and the terms under which the person is deemed to have consented when actually they did not want to consent but simply felt intimidated?

Lord Rix: I fear that the new offences which cover care workers are still seen in the noble and learned Lord's department as a fallback for action under other Bill headings, as has been stated by other Members of the Committee today, which provide for more severe penalties. I listened to the Minister and others and, indeed, to the arguments put by the Home Office, but that is not really how I see things. Only the abuse of trust provisions give real protection to the vulnerable person in a particularly vulnerable situation who, although able to consent in theory, has little choice in practice.

Lord Falconer of Thoroton: I shall deal quickly with all three points. First, in response to the noble Lord, Lord Carlisle, we set maximums and we do no more than that. The framework must be set by the courts. On the question of whether we are right to draw a distinction between penetrative sex and non-penetrative sex, which is done not only here but also in other parts of the Bill, we think that we are right to do so because it marks the greater seriousness of the offence. Broadly, we are seeking to do what the noble Lord suggests: setting maximums and then leaving it to the courts.
	Secondly, in response to the comments of the noble Baroness, Lady Blatch, it is precisely because of the points she made that this run of offences has been included in the Bill. Consent here is totally irrelevant. It plays no part in the ingredients of the offences. To put it simply, the elements required for an offence are the relationship of care between the defendant and the victim, and the occurrence of sexual activity. As the noble Baroness pointed out, shades of consent are difficult to prove in these circumstances. Furthermore, as the noble Lord, Lord Adebowale, remarked, the power is with the carer. The offences reflect the concerns expressed by the noble Baroness.
	Thirdly, the noble Lord, Lord Rix, has completely convinced me and the rest of the Government that these should not be regarded as residual offences, precisely for the reasons set out in Setting the Boundaries; namely, the scope for abuse.

On Question, amendment agreed to.
	[Amendment No. 230 not moved.]

The Deputy Chairman of Committees: If Amendment No. 231 is agreed to, I shall not be able to call Amendment No. 232 by reason of pre-emption.

[Amendment No. 231 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 232:
	Page 20, line 40, leave out "7" and insert "10"
	On Question, amendment agreed to.
	[Amendment No. 233 not moved.]
	Clause 43, as amended, agreed to.
	Clause 44 [Care workers: causing sexual activity]:

Lord Astor of Hever: moved Amendment No. 234:
	Page 21, line 1, at beginning insert "for the purpose of obtaining sexual gratification,"

Lord Astor of Hever: In moving Amendment No. 234, I shall speak also to Amendments Nos. 241, 243 and 244. The purpose of the amendments is to make sure that those who provide help, advice and instruction for people with mental disorders or learning difficulties to develop their awareness of their own sexuality are not criminalised. These are probing amendments and are supported by the National Autistic Society, MIND and Turning Point. While I accept that the wording of the amendments is not perfect, it does raise the issue of sex education.
	Care staff in services may engage in intimate acts as part of a programme of sex education for their patients, for example, facilitating masturbation. Experienced and trained staff who engage in such educational activities should not be criminalised as these programmes enhance the quality of life of the people in their care. Currently the Bill does not provide any protection for care workers who, for legitimate purposes, encourage mentally disabled people to engage in sexual activity.
	My amendments offer two alternative options to provide an exemption for care workers in Clause 44, covering care workers "causing sexual activity", and in Clause 45, covering care workers "inciting sexual activity". Amendments Nos. 234 and 241 seek to make the activity an offence only if the care workers were behaving in non-legitimate circumstances and,
	"for the purpose of obtaining sexual gratification"
	for themselves.
	Amendments Nos. 243 and 244 propose an exemption in Clause 45 by drawing attention to those care workers who have been authorised by the Secretary of State to provide sexual assistance as part of the treatment which B receives. It might be hard to prove in reality whether or not a care worker was helping a patient perform a sexual activity for the purposes of obtaining sexual gratification. Requiring a care worker to be authorised by the Secretary of State to provide sexual assistance for treatment purposes would make it a more regulated activity. However, I accept that it might be difficult in practice to require care workers to seek approval from the Department of Health.
	Care workers provide an invaluable service to those with mental disorders and learning disabilities. It is imperative that they are afforded a comprehensive degree of protection in providing these treatment facilities to their patients. I very much hope that the Government will introduce national guidelines on sexual education for adults with a mental disorder or learning disability. I beg to move.

Lord Campbell of Alloway: What could be covered under paragraph (b)—"the activity is sexual"—that would not be covered by "for the purpose of obtaining sexual gratification"? If the answer is "nothing at all"—and this is a probing amendment—I respectfully suggest that it does not achieve anything that should be committed to a Bill which will become an Act of Parliament.

Lord Adebowale: I support the noble Lord, Lord Astor. I intended to raise this issue at Clause 46 stand part stage. However, it seems appropriate to raise my points now. In any event, I would rather make my points through an amendment than by pursuing the route of opposing clause stand part. For this reason, I am grateful to the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor.
	I am very conscious of the need for future legislation to strike a sensitive balance between promoting sexual autonomy and protecting people from abuse and exploitation. We need to ensure that people with learning disabilities enjoy their fundamental right to a healthy sex life but we must also protect people from harm.
	At Second Reading, I listened closely to the arguments made that the Bill does not recognise that care workers may undertake work for people with a learning disability to help them to enjoy a sex life if they so wish. My understanding is that under current law care workers would not come within the ambit of the criminal law if that sexual activity is not indecent. However, under the provisions in the Bill a person may come within the scope of the new legislation even in cases where touching is within the context of a sex education programme and helps people to understand and express their sexuality. This is an issue of concern to the charity of which I am chief executive, Turning Point.
	I have also received an informative briefing from Sue Brown at the deafblind charity, Sense. If I may, I should like to indulge the Committee's time by quoting from that briefing. Sense's policy on personal relationships allows for teaching of an intimate or sexual nature to take place only where there is no alternative method. However, Sense, like Turning Point, would not want to see the law deny the possibility of sex education, which in the case of a deafblind person might include the need for physical instruction for the purpose of education. It is not clear whether touching in this context would be considered to be "sexual" as defined in the Bill, but care staff could find themselves unable to provide essential support to deafblind people relating to sex education. This mirrors Turning Point's worries about the Bill.
	On balance, it would be inappropriate to spell out an exception regarding sex education on the face of the Bill as it would be difficult to frame and there is a risk that this provision might be abused. However, guidance is needed to ensure that care workers who carry out legitimate sex education work are not prosecuted. Guidance is also needed to prevent prosecutions in cases involving two people with severe learning disabilities who engage in sexual activity but where neither person can consent to sexual relations. This issue has already been raised in a separate amendment. I hope that the Minister can assure me that guidance will flow from the Bill's provisions to deal directly with this issue.

Baroness Howarth of Breckland: I want to raise the issue of people with severe physical disabilities who may not have a mental disorder or a learning disability. I speak as the vice-chair of the John Grooms charity for disabled people. That group of people has been missed out. I have been looking for an opportunity to raise the question of how they could be included in the Bill. I would be grateful if the Minister would consider how the legislation might include them so that their rights are the same as those of the groups we have already debated.

Baroness Walmsley: We support the amendments tabled by the noble Lord, Lord Astor of Hever. I raised on Second Reading the point that it is important that people with mental disorders and learning disabilities are enabled to have a sex life. That is a very fulfilling part of life, and it may be only with the help and instruction of care workers—properly trained and regulated, of course—that it can take place. The amendments would provide a reasonable amount of protection for people who certainly need it.
	I turn to the point made by the noble Lord, Lord Campbell of Alloway, about paragraph (b), which makes it an offence if "the activity is sexual". He asked whether that paragraph did not cover the point. I believe that it may not, because the activity being sexual relates to the nature of the act. The words in the amendment,
	"for the purpose of obtaining sexual gratification",
	refer to the purpose of the act for the person committing it. We need the amendments, and I support them.

Lord Campbell of Alloway: How an earth can there be gratification without an act, and why should the act be prohibited if it is not sexual? I am not trying to be difficult. The noble Baroness, Lady Walmsley, rightly criticised what I said—I am usually wrong, anyway—but I cannot understand her reasoning.

Baroness Walmsley: I should clarify what I meant. I did not say that we do not need paragraph (b). We need it to make clear the nature of the act to which we refer, but in addition we need the amendment tabled in the names of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, to clarify the intention of the person committing the act.

Baroness Blatch: This is a difficult area. My noble friend Lord Campbell of Alloway suggested that the amendments were probing. In that spirit, I want to pose some concerns about the amendments being accepted.
	Amendment No. 234 imposes a harder test in Clause 44 for proving that a care worker has caused a person in his care to engage in sexual activity. I should make it clear that some powerful points have been made about the rights of such people, and I do not want to get in the way of those rights but simply to raise some questions.
	Amendment No. 241 would make the same change to Clause 45, which covers inciting sexual activity. The changes would require it to be proved that a defendant incited, or caused the activity,
	"for the purpose of obtaining sexual gratification".
	I am sure my noble friend intends that an activity that is wholly innocent, such as legitimate sex education, should not fall foul of the offences. That is my reading of the meaning of the amendment. However, as I understand it, there is no real risk that such activities would be successfully prosecuted. Police, prosecutors and the courts have enough common sense to see that as a bona fide situation that has been registered under the system. Following the law of unintended consequences, the amendment would instead provide a much wider defence, which would actually require the prosecution to adduce evidence of the perpetrator's intention. Prosecutions could fail for lack of evidence of what he intended by his actions, even when they were overtly sexual. Defendants simply have to put up a reasonable sounding claim that they were not acting for their own sexual gratification and they can escape conviction. A claim that they caused or incited a disabled person to engage in sexual activity for "educational purposes" rather than their own gratification could result in an acquittal.
	Under Amendments Nos. 243 and 244 care workers would be authorised by the Secretary of State—by what mechanism we are not told—to provide sexual assistance to their patients. This would exempt them—I am talking about the carers—from the offence detailed in Clause 45 of the Bill. If my reading is right, that would open up an astonishing loophole in the law. It would give a blanket defence to carers "providing sexual assistance". What does that actually mean? The Family Planning Association says that for disabled people,
	"assistance with sexual expression may be required . . . Staff and carers should take a holistic view of sexuality to encompass sensuality and intimacy".
	So even the FPA is coy on this point. Does the organisation called the Sexual Freedom Coalition tell us what is really being talked of here? Its submission to the Sex Offences Review claims,
	"Some physically disabled people who are unable to masturbate want to be able to put in the job description of their personal assistants that there is an option to relieve them of their sexual frustration".
	The submission refers to physically disabled people, but are we to deduce that this is the sort of thing to which the amendment before us relates? The website of the Sexual Freedom Coalition goes further, describing,
	"Sex Angels, often nurses or care assistants who act as unofficial volunteers using their uninhibited minds and fingers to rescue the situation. This is always hush-hush".
	If this amendment is at any risk of legally enshrining such activities, we really should have nothing to do with it. It would radically undermine the patient/carer trust and could place some carers in an excruciatingly embarrassing position. I believe that it has some read-across to previous amendments.
	The amendment could also be abused. It could allow a carer who sexually abused one of his patients to claim that he was merely providing "sexual assistance". The amendment could give the abuser immunity from prosecution. The perpetrator of the offence would be free to argue that he was merely helping his victims to fulfil their sexual desires and was registered by the Secretary of State for the purpose. The amendment may even lead abusers deliberately to seek jobs as carers because of this exception in the law.
	Those with a mental disorder or learning disabilities desperately need the protection of the law as well as proper respect for their fundamental rights in this area. Incitement is a term clearly understood in criminal law. The proposed amendments would obscure its meaning and remove protection from some of the most vulnerable people in society. That is what we are discussing in this part of the Bill.
	If my reading of the amendments is correct, I hope that it will not be made more difficult to bring to account those who abuse very vulnerable people. We need to recognise and respect the rights of the physically disabled as well as those with learning disabilities to have fulfilment but at the same time we should not make it much easier for very manipulative people to be free to abuse in the name of the law.

Lord Thomas of Gresford: Will the Minister explain why the phrase,
	"for the purpose of obtaining sexual gratification"
	appears in Clause 46(1)(c) and in Clause 47(1)(a) but does not appear in the earlier clauses? Obviously, the thinking behind it is that there is a distinction between Clauses 43, 44 and 45 and Clauses 46 and 47. I quite fail to see what the distinction is. I look forward to enlightenment.

Lord Falconer of Thoroton: This is a very sensitive and difficult area. I understand the amendments moved by the noble Lord, Lord Astor of Hever, to be probing amendments. He made it absolutely clear—he telegraphed this in advance for which I am grateful—that he seeks to deal with the issue of sexual education for people with a mental disorder or a learning disability.
	The noble Lord proposes that in order to be guilty of an offence under Clause 44 the person who intentionally causes the victim to engage in the relevant activity must do so in effect for the purposes of his own sexual gratification. That would, as it happens, exclude those cases where the carer procures the victim to engage in sexual activity with someone else for money, for example. The noble Lord, Lord Astor of Hever, would plainly not wish to exclude that.
	As a means of getting to the end that the noble Lord wishes to reach—legitimate sex education activity that is not a criminal offence—the amendment does not work because of the sorts of case that it lets in. There might well be other cases where simply bullying or intimidation was the motive, rather than sexual gratification. Again, I am sure that he and the noble Lord, Lord Adebowale, would not wish to exclude those cases.
	How then does one deal with the problem? The next proposal is to create some exemption scheme related to the Secretary of State through which authority is given. Again, I fully accept that the amendment is probing, but the scope of the exemption is very broadly defined, both with respect to the nature of the activity covered and the care workers to whom it might apply. It is very difficult to see how it could work in practice, in terms of the positives. How would one get the authorisation? What would be the effect of not being authorised if one were legitimate? What would the scope for abuse be even if one were authorised? The amendment has absolutely no feel of practicality. Although it is only a probing amendment, it does not get off the starting block as a sensible way forward.
	The noble Lord, Lord Adebowale, effectively accepts, which is sensible, that it is very difficult to deal with the problem in the Bill. As the noble Baroness, Lady Blatch, said, one has to leave it to prosecutorial discretion. Is that enough? The noble Lord asks about producing some sort of guidance. We need to think about that, as it seems an important issue. Without giving any assurance, I should like to come back to that on Report and indicate where we have got to. However, I make it absolutely clear that our pretty firm view is that dealing with the matter in the Bill is not the right method, as it would lead to more problems than one would solve.
	The noble Baroness, Lady Howarth, made a point about those not suffering from a mental disorder or learning disability but who have a physical disability. The provisions do not refer at all to them. Therefore, the normal law would apply, and the relevant question would be whether there was genuine consent, assuming that the person to whom she referred was an adult. We need to look at whether there is there some degree of vulnerability.

Baroness Howarth of Breckland: Those people who are quadriplegic with communication difficulties, but who are not psychologically or mentally impaired—the kind of people with whom I deal—are certainly vulnerable, in that there is a power relationship with the care worker. Certainly, the new adult protection units are discovering in a number of places that they have to look into such situations. If we were able to consider them in the Bill and have a clearer way forward, it would help the units and people who try to provide the services. I would be grateful if it were possible at this stage to see whether there was any possibility of including that group of clients in the Bill.

Lord Falconer of Thoroton: Perhaps I may consider that. In effect, the question that the noble Baroness raises is one of a whole new category of people. We have to see whether they are adequately covered by the provisions about the problems of communication. I imagine that she would suggest that vulnerability gives rise to the problem as well as communication. We cover it to some extent—I know that it will not be adequate enough for her—in Clause 78, in which we give rise to certain presumptions. However, I imagine that she is referring to a more pervasive protection than simply that. I will certainly consider what she has said, again with no assurances.
	I shall come back at a later date to the question asked by the noble Lord, Lord Thomas, perhaps by correspondence.

Lord Astor of Hever: I very much take the point made by my noble friend Lord Campbell of Alloway. It was never my objective to have the amendments included in the Bill. However, I have been persuaded by bodies that I respect that the issue is important and needs to be debated. I am very grateful for the support of the noble Baroness, Lady Walmsley, who recognised the importance of sexual education by properly trained and properly regulated staff.
	I agree with my noble friend Lady Blatch that this is a very difficult area. Our amendments are not perfect, as I said in my opening speech. I discussed them thoroughly with our advisers before agreeing to move them. My briefing was not from the Sexual Freedom Coalition but from bona fide legitimate charities which I respect.
	We have had a good debate and I thank the Minister for his reply. I very much look forward to the Government coming forward, as I hope they will, with something positive in relation to national guidance on sexual education. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 235 and 236 not moved.]

Lord Falconer of Thoroton: moved Amendments Nos. 237 and 238:
	Page 21, line 10, leave out subsection (3).
	Page 21, line 11, at beginning insert—
	"(3A) A person guilty of an offence under this section, if the activity caused involved—
	(a) penetration of B's anus or vagina,
	(b) penetration of B's mouth with a person's penis,
	(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
	(d) penetration of a person's mouth with B's penis,
	is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
	(4) Unless subsection (3A) applies,"
	On Question, amendments agreed to.
	[Amendment No. 239 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 240:
	Page 21, line 15, leave out "7" and insert "10"
	On Question, amendment agreed to.
	Clause 44, as amended, agreed to.
	Clause 45 [Care workers: inciting sexual activity]:
	[Amendments Nos. 241 to 245 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 246:
	Page 21, line 27, at beginning insert—
	"(2A) A person guilty of an offence under this section, if the activity incited involved—
	(a) penetration of B's anus or vagina,
	(b) penetration of B's mouth with a person's penis,
	(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
	(d) penetration of a person's mouth with B's penis,
	is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
	(3) Unless subsection (2A) applies,"
	On Question, amendment agreed to.
	[Amendment No. 247 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 248:
	Page 21, line 31, leave out "7" and insert "10"
	On Question, amendment agreed to.
	Clause 45, as amended, agreed to.
	Clause 46 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:
	[Amendments Nos. 249 to 251 not moved.]
	Clause 46 agreed to.
	Clause 47 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:
	[Amendments Nos. 252 to 254 not moved.]
	Clause 47 agreed to.
	Clause 48 [Care workers: interpretation]:

Lord Adebowale: moved Amendment No. 255:
	Page 22, line 29, leave out "the care of" and insert "caring for, training or supervising"

Lord Adebowale: In moving Amendment No. 255, I shall speak to all my amendments to Clause 48. This will be interesting: it is a big task and a massive group of amendments. I hope that I am up to the challenge and, more to the point, that Members of the Committee can keep up with me because I may have trouble myself.
	The amendments to which I shall speak include Amendments Nos. 263, 272, 273, 275 and 277. I wish also to support the amendments tabled by the noble Lord, Lord Rix—Amendments Nos. 258, 260, 279 and 280. These amendments on advocacy are very important and I give notice of my intention formally to support the noble Lord, Lord Rix, when he moves them.
	The aim of Amendment No. 255 is to define more closely the meaning of "care" to include activities such as training and supervision within the definition. That would make these provisions consistent with the equivalent clauses in relation to children who live in a care setting, as defined earlier in the Bill.
	The manager of a care home may not provide regular care but will certainly provide regular supervision and possibly training and will be in a position of care and trust in that care setting. The organisation BILD, led by the excellent Dr John Harries, has pressed the importance of the caring role to extend to individuals who provide citizen advocacy for people with learning disabilities. I know that this is an issue that rightly preoccupies the noble Lord, Lord Rix, and the noble Baroness, Lady Noakes. People providing advocacy hold a position of trust. The Bill's provisions should extend to them as well as to those who provide training and supervision.
	Amendments Nos. 263, 272 and 273 also relate to the relationship of care. Care staff may be entrusted with work of a very intimate nature such as washing an individual or changing their clothes. The amendments seek to take account of situations where people may be in a position of trust but do not provide face-to-face support. Such people may have some contact with the individual and enjoy a position of authority but do not provide hands-on or face-to-face support. A senior hospital figure is one example. I should like to avoid situations in which an abuser claims that he does not have face-to-face contact with the person as a means of avoiding a prosecution. The noble Lord, Lord Rix, has addressed a similar issue in relation to the word "regular". I hope that the noble and learned Lord, Lord Falconer, will confirm that that issue is addressed in a later amendment.
	Amendment No. 275 broadly seeks to achieve the same objective sought in similar amendments tabled by the noble Baroness, Lady Noakes. I have already outlined the need for care settings to be broadly defined. This amendment explicitly seeks to set out the need for the offence to apply to situations in which a person provides training, social, educational or recreational activities to a person with a learning disability. We know that sexual abuse can take place in any setting and that people may be particularly vulnerable to abuse in youth clubs, day centres and other similar environments. Indeed, we are all too painfully aware that those settings may not be properly regulated, are inadequately staffed, or have staff who are inexperienced, poorly trained or too frightened to speak out when they see another staff member committing abuse.
	Volunteers may also work in day services but are indistinguishable from staff in terms of the power and position they hold over a person with a learning disability. All abuse is morally indefensible. That includes indirect toleration of abuse or collusion in relation to reporting or responding to abuse. Day services may create their own cultures of abuse, particularly those that remain institutional. Supervision of people with learning disabilities may be poor or borderline or neglectful. People are not offered real activities or opportunities to interact with others.
	The law on sex offences should explicitly set out what is right or wrong and define care settings as widely as possible. I appreciate that the existing clause seeks to include all situations and all settings where support is provided to another individual. However, I believe that given the vulnerability to abuse in a day centre or youth club, the nature of the setting should be explicitly defined and set out in the Bill.
	I turn finally to Amendment No. 277. I note that the noble Baroness, Lady Noakes, has a similar amendment. I am concerned that the inclusion of the term "personal" may narrow the scope of protection and unintentionally mean that some forms of care would not come within the provisions of the Act. A person may be in a position of care and trust but not provide personal care to another individual. That individual may have a combination of physical, social and healthcare needs. For example, a person who works in a day centre and closely supervises and supports an individual to develop social skills and interact with others may not be providing personal, hands-on nursing care but is still in a position of trust and may abuse that position if left unchecked by law. The removal of the term "personal" will ensure that all forms of care are covered by the Act. I beg to move.

Lord Rix: In speaking to my Amendments Nos. 258, 260, 265, 271, 276 and 280, I am pleased that that definition of a care worker has now been extended to include a range of services and assistance whether provided by voluntary or paid staff. The Minister deserves credit for listening to our concerns, and I warmly congratulate him on so doing. However, I should be even more delighted if he would confirm that the new definition of care worker will also include independent advocates. They are trusted to represent the interests of people with learning disability and to that end enjoy privileged access to them. Their responsibilities do not usually include personal care, but they may well spend substantial periods of time alone with their advocacy partner. I should be very interested to hear what the Minister has to say in response to that.

Lord Astor of Hever: The interpretation of "care workers" is liberal in its definitions and goes some way towards broadening the scope of protection for vulnerable adults, since it criminalises practices that have been proscribed merely by professional guidance regulation. This is an advantageous development, as such regulation has in the past failed to safeguard the wellbeing of many clients and patients. However, a persistent contributory factor in that problem has been not only inadequate regulation, but in some professions an absence of regulation. I am concerned that the interpretation of the clause may perpetuate this situation by failing to include in its scope some practices and professions that have been regulated either inadequately or not at all. Left as it is, Clause 48 would allow the continuation of grave danger to some vulnerable adults in receipt of care, as their needs for equal protection would be ignored by virtue of the nature of the care that they have sought. Our amendments would rectify this by incorporating practices and settings of care standards that are not currently included, but through which an equal risk of abuse is posed to vulnerable adults.
	Health and social care professionals have a great deal of trust from their patients or clients, a high level of responsibility towards them and significant power over them. When care providers become sexually involved with current patients they are overstepping their professional boundaries. It is crucial that Clause 48 is sufficiently comprehensive to condemn any abuse of such responsibility and power—not only that which occurs within mainstream care. Our amendments include independent practices and practitioners, training, educational and occupational services and interpretations of care beyond just the "personal". They would ensure that services such as counselling, psychotherapy and complementary therapies are included, that those professionals practising from their own homes are not above the law, and that modern care environments and provisions, such as day centres, are accounted for. POPAN, funded by the Department of Health, reports that 55 per cent of calls to its helpline concern abuse by counsellors and complementary therapists.
	I turn to our amendments proposing the inclusion of advocacy services, which also have little or no regulation, but are, unfortunately, as likely to involve abuse as other practices. I raise the matter in light of the fact that advocacy is to be made a legal right to some groups of vulnerable adults with the introduction of the new mental health Bill. The Government's heightened recognition of the benefits of advocacy services is welcome, but that must be qualified by measures to ensure that these services are safe and bound by the same safeguards as other services.
	Does the Minister intend that services such as advocacy and supervision will be covered by his Amendment No. 274? People seeking redress through these offences, at least in part due to their already having survived abuse, are very likely to need, and indeed, to benefit from support both during and after legal proceedings. Without that, I fear that many vulnerable adults would be discouraged from pursuing legal action and that the potential effectiveness of the Bill will not be achieved. It is on that basis that I suggest that independent specialist advocacy services be available to all persons using Clauses 33 to 51 and that support, if desired, is available both during and after cases are heard.
	I move on to Amendments Nos. 261 and 262. Could the Minister expand on his decision to expand Clause 23 by inserting the term "residential home care", but only to insert the terms "community home" and "voluntary home" in Clause 48? Does the Minister agree that, as with children, the abuse of vulnerable adults can also take place in any residential care home? We propose that our Amendment No. 262 provides a more foolproof safeguard against abuse which takes place in any residential care home. If the offences of Clauses 43 to 48 were to be broadened by removing the word "regular", that would be consistent with the purpose of the Government to protect vulnerable people from sexual abuse without infringing on their right to a private sex life.
	As the Minister stated in his letter to me, it is possible for the abuse of a vulnerable adult by a care worker to take place upon their first contact. In recognising that, the Government have clearly acknowledged that contact does not need to be regular for abuse to take place. A vulnerable adult may be abused on his or her first contact with the care worker and never see him or her again. That does not make that abuse any less grave or damaging.
	It is inconsistent to deny some victims of abuse protection or redress merely because they may not have enough contact with their abuser in the eyes of the law. If one contact is sufficient for abuse to take place, one contact should be sufficient for prosecution. Are the Government really prepared to condone abuse if it cannot be proved that further regular contact with the carer is likely to take place? If the term "regular" remains part of the clause, a vulnerable adult abused by, for example, a nurse whose care he or she received for only one morning would not be protected by the Bill.

Lord Hylton: I want briefly to support what my noble friend Lord Rix said about lay advocates in various institutions. I do so from the experience of NIACRO in Northern Ireland and I have the honour to be the president of that organisation. We have been providing advocacy for teenagers in youth custody centres in Northern Ireland over a number of years and what my noble friend said is right.

Lord Falconer of Thoroton: The noble Lord is right to say that the clause is central to the other clauses relating to care workers as it defines to whom, where and when these offences will apply. We listened carefully to what was said at Second Reading and in our meetings and we believe that changes are required. They appear in our Amendments Nos. 262, 264, 270, 274, 281, 282 and 284. I shall deal first with them and then with the particular points raised.
	Amendment No. 261 adds "community home, voluntary home" to the list of residential accommodation covered in subsection (2), there defined in Amendments Nos. 282 and 284. It is done for the sake of completeness. What is already covered is a care home which is described as providing accommodation together with nursing or personal care for any of the following persons. Subsection (b) specifies persons who have had a mental disorder. It is therefore wide already. We are worried about the point that we might include all homes, and that is why we have added "community home, voluntary home". We believe that that is sufficient.
	Amendments Nos. 264 and 270 take account of concerns expressed to us by stakeholders that it was possible that a care worker could abuse his position of trust on the first time of meeting someone with a mental disorder or learning disability. The wording now allows for the case where A performs functions which are likely to bring someone into regular face-to-face contact. That change is also carried into Amendment No. 274.
	The government Amendment No. 274 replaces the whole of subsection (4) with a formulation based solely on the relationship of care defined widely as "care, assistance or services" and removes the residence requirement which may have unwittingly excluded, for example, homeless people residing in a hostel from its protection and all the examples of day-care services that have been provided. Members of the Committee will see that that will encompass most of the relationships they were concerned to encompass under the protection of these clauses and the amendments they proposed.
	The last of the government amendments, Amendment No. 281, makes a minor alteration to the definition of "care home".
	I turn to the amendments spoken to by noble Lords. Amendments Nos. 258, 260, 279 and 280 seek to make specific reference to the inclusion of advocates in those who provide care. Our hope is that noble Lords will be satisfied because I am satisfied that Amendment No. 274, which refers to care, assistance or services, embraces that particular category. The case made by Members around the Chamber is a powerful one and we intend to cover that in Amendment No. 274. I hope noble Lords will think that we have done that adequately.
	Amendments Nos. 265, 271 and 276 propose the removal of the requirement that face-to-face contact should occur on a regular basis. One of the earlier amendments I referred to seeks to deal with a situation where there is abuse on the first occasion. I believe that government Amendments Nos. 264 and 270 go some way to meeting the concerns expressed. However, to go as far as noble Lords require, particularly in the light of Amendment No. 274, is to go too far because it means that if any service is provided—if you serve someone in a shop, for instance—that would give rise to the relationship. We believe that that goes too far in relation to the creation of a criminal offence. Equally, it would cover a situation where a taxi driver carried the victim on one occasion only. Again, we think that is going too far. We fully understand the concerns. We have gone as far as we think it sensible to go, but we think that those particular provisions go too far.
	The noble Baroness, Lady Noakes, and the noble Lords, Lord Astor of Hever and Lord Campbell of Alloway, would add to the list of residential establishments. I am being corrected that it was not the noble Baroness; she put her name to the amendment. I apologise for including her, but that is why I did it. As regards using the words "any other residential establishment" I believe I have covered that already.
	Amendments Nos. 267, 268, 269 and 283 seek to make specific reference to the inclusion of independent practitioners to those who provide care. Again, I believe that is covered adequately by Amendment No. 274 in the wide definition of services. Amendment No. 432, which is also in this group, to which I do not believe the noble Lord, Lord Adebowale, has spoken, seeks to add an order-making power to enable the Secretary of State to add to the definitions of care worker in Clause 48. I believe we have gone far enough not to need that power. The wide nature of Amendment No. 274 meets the particular point made. We have now defined it in such a way as to be as inclusive as possible.
	I have dealt with the face-to-face and the regular arrangement. Types of services provided are again dealt with in Amendment No. 274. I very much sympathise with the kind of situations noble Lords seek to cover. However, with the exception of the one-off situation, where I am not prepared to go as far as noble Lords would go, they are broadly all sufficiently covered by the amendments proposed. I confirm that the independent advocate is covered by our amendment.

Lord Campbell of Alloway: Before the noble and learned Lord sits down, I was not going to speak on this amendment, but I shall be brief. This jumble of amendments, many of which are repetitive, come from different sources. Obviously, the Government will consider them. I am not wasting time. Some of the amendments are unique. In the light of this discussion, would the Government be prepared to draft an amendment on which they could then consult with everyone concerned so that this could be done off the Floor of the House before Report?

Lord Falconer of Thoroton: I thank the noble Lord for that suggestion. However, many of the points have been raised before, quite legitimately. We know what the issue is. It is about regular face-to-face contact. I think we have broadly accommodated every other issue. I have set out what our position is. I do not think any purpose would be served by a consultation which, as it were, went round the houses again. I fully appreciate the spirit in which the proposal is made but I am not sure that it would take us very much further.

Baroness Howarth of Breckland: Perhaps I may ask the Minister a different question. I welcome the Minister's remarks and believe that that would be extraordinarily helpful. I believe the one issue that was not picked up by the Minister—it was all rather fast—was that of leaving out "personal" in terms of personal care. I would have spoken to this had I not thought that it might be addressed with the other issues. The reason I am particularly concerned about removing "personal" is that it has a very clear defined meaning in relation to the social care legislation. With the current debates in relation to "supported living" as against "direct care", if we include "personal" in the personal care provisions I think that there will be all kinds of legal debates. I had hoped that the noble Lord, Lord Thomas, would be here. I thought that I needed someone with his mental agility in the law to help me on this matter, but I think that I have made my point.

Lord Falconer of Thoroton: The point has been made to me privately. It is an entirely good point. As a result we have knocked out altogether the reference to "personal care". The relevant words are in Amendment No. 274. I should have said this and I apologise for not doing so. They are,
	"whether or not in the course of employment"—
	A, who would be the defendant, is—
	"a provider of care, assistance or services to B in connection with B's mental disorder or learning disability".
	So the word "personal" has completely gone out of the picture for precisely the reasons referred to by the noble Baroness, Lady Howarth.

Lord Rix: My tinnitus is roaring away. I did not hear that the definition of a "care worker" included independent advocates. Can the noble and learned Lord perhaps calm my tinnitus and assure me otherwise?

Lord Falconer of Thoroton: I hope I can calm the noble Lord's tinnitus by saying that we take the view that a,
	"provider of care, assistance or services",
	would include specifically an independent advocate. We hope that noble Lords will take the same view. We have not included an express reference to that because we think we have made out the case.

Baroness Blatch: For the past 15 years my tinnitus has not stopped roaring away, so I have difficulties the whole time. The noble and learned Lord not only speaks very fast but is also precipitative because I had hoped to speak in support of my noble friend's amendments. I am not absolutely certain that I entirely accept what the noble and learned Lord said about my noble friend's amendment regarding the word "regular", and, for example, on Amendment No. 263, standing in the name of the noble Lord, Lord Adebowale, which broadens the protection afforded by Clause 48 by widening the definition of "care worker". It does that by removing the requirement in subsection (2) that the perpetrator is acting in the course of employment. Furthermore, it removes the requirement that the perpetrator must have face-to-face contact with the victim.
	My noble friend certainly made a powerful point about the casual acquaintance, which is technically face-to-face and which can be extremely abusive. I am not sure that the points made by the noble and learned Lord cover totally that kind of encounter. I genuinely think that we should reflect on what has been said on all sides of the Chamber about that particular issue. I do not know whether my noble friend wants to return to it.
	The noble Lord, Lord Rix, initially raised the issue of personal advocacy. Again my noble friend was very persuasive. The noble and learned Lord has been very helpful and says that it is included in the understanding of how Pepper v Hart works; that it is on the record and could be invoked if there was a future situation with someone engaged in personal advocacy. If so included, there may well be a need at some time to have a definition of what "other services" means because there are all kinds of services. If one removes the word "personal", then "services" is a very wide definition. I can see courts saying that that is not really a service. Nevertheless, with the increasing incidence of "supported living", about which we have heard a great deal in the past few days, in order for there to be a proper understanding of those involved in the care of vulnerable people there will need to be some understanding of what "other services" actually means. So, before the Bill finishes its passage through the House, we shall need some definition and some absolute guarantee that "personal advocacy" or people involved in personal advocacy is included.
	However, I want to put on the record that I support Amendments Nos. 256, 257, 259, 263, 265, 271 and 276 tabled by my noble friend Lord Astor, the noble Lord, Lord Adebowale, and the noble Lord, Lord Rix.

Lord Falconer of Thoroton: Perhaps the noble Lord will reflect on whether it is sensible to start picking out specific kinds of services. We take the view that it is much better to have a wide definition, as the noble Baroness, Lady Blatch, says, so that it covers as much as possible without seeking to limit it. I apologise to the noble Baroness for speaking so fast that I prevented her from getting in.
	On the "regular face-to-face" issue, we are very keen to ensure that on the first occasion, if abuse occurs, where it is likely that there would be "regular face-to-face contact", it will be covered. Equally, even if the person were temporary but regularly provided face-to-face services, that would be covered. The question is not whether someone is temporary or permanent but whether they have regular contact with the victim. Where the amendments go too far is that the provision of any services, no matter how limited, should not of itself give rise to the relationship that can create the criminal offence. That is the issue.

Lord Adebowale: I was going to support the amendment tabled by the noble Lord, Lord Rix.

Noble Lords: No.

Lord Astor of Hever: On behalf of all those who have tabled the amendments, I thank the Minister for his response. There is a lot to digest in what he said, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 256 to 260 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 261:
	Page 22, line 33, after first "home" insert ", community home, voluntary home".
	On Question, amendment agreed to.
	[Amendments Nos. 262 and 263 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 264:
	Page 22, line 35, leave out from "A" to "regular" in line 36 and insert "has functions to perform in the home in the course of employment which have brought him or are likely to bring him into".
	On Question, amendment agreed to.
	[Amendment No. 265 not moved.]
	[Amendment No. 266 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 267 to 269 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 270:
	Page 22, line 41, leave out from "A" to "regular" in line 42 and insert "has functions to perform for the body or agency or in the clinic or hospital in the course of employment which have brought him or are likely to bring him into".
	On Question, amendment agreed to.
	[Amendments Nos. 271 to 273 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 274:
	Page 23, line 1, leave out paragraphs (a) and (b) and insert "A—
	(a) is, whether or not in the course of employment, a provider of care, assistance or services to B in connection with B's mental disorder or learning disability, and
	(b) as such, has had or is likely to have regular face to face contact with B."
	On Question, amendment agreed to.
	[Amendments Nos. 275 to 280 not moved.]

Lord Falconer of Thoroton: moved Amendments Nos. 281 and 282:
	Page 23, line 5, leave out from "home"" to "of" and insert "means an establishment which is a care home for the purposes"
	Page 23, line 7, at end insert—
	""community home" has the meaning given by section 53(1) of the Children Act 1989 (c. 41);"
	On Question, amendments agreed to.
	[Amendment No. 283 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 284:
	Page 23, line 18, at end insert—
	""voluntary home" has the meaning given by section 60(3) of the Children Act 1989 (c. 41)."
	On Question, amendment agreed to.
	Clause 48, as amended, agreed to.
	Clause 49 agreed to.
	Clause 50 [Sections 43 to 47: sexual relationships which pre-date care relationships]:
	On Question, Whether Clause 50 shall stand part of the Bill?

Baroness Blatch: Clause 50 exempts a care worker who engages in sexual activity with a person in his care, provided that they already had a sexual relationship immediately before the position of trust arose. Some have thought that Clause 50 is necessary to deal with the case of a married couple where one spouse suddenly becomes subject to a mental impairment and is then cared for by the other spouse. But the marriage exception in Clause 49 comprehensively covers that situation.
	Entirely properly, married couples are exempt from the offences in Clauses 43 to 47. Even where a couple are engaged to be married and one fiancee becomes mentally disordered, Clause 50 is still unnecessary. The reason for that is that any mentally disordered person who is capable of consenting to sex is by the same token capable of consenting to marriage. The contrary position is also true: if one fiancee became legally incapable of consenting to marriage, neither could they legally consent to sex. Such a person would then be protected by the Bill. So the position of marriage is well and truly covered.
	Clause 50 creates a serious loophole in the Bill that could radically undermine the protection contained in Clauses 43 to 47. All the accused would have to argue is that he had a sexual relationship with his victim prior to taking up the post.
	By definition, the offences in Clauses 43 to 47 are likely to have a victim who is unwilling to accuse the person who has abused a position. Those offences are necessary because we are talking about activity that is apparently consensual but where the consent is undermined by the care relationship that exists. They are not offences where there is evidence that force has been used. Prosecutors are not prosecuting for rape, sexual assault or one of the offences in Clauses 33 to 42. The victim has apparently consented. But the same vulnerability that makes the offences necessary in the first place makes such a defence open to abuse.
	A care worker who begins a sexual relationship with a patient the day after he starts a new job will be committing an offence. A care worker who begins a relationship the day before will not. The result will be two tiers of protection. Those who were drawn into a sexual relationship with a carer before he began his job are not protected. There is a danger that prosecutions under Clauses 43 to 47 could routinely become bogged down in arguments about whether there was a sexual relationship before the accused started his job.
	If paedophiles seek out responsible positions over young people, those who abuse adults with a mental disorder can also act in the same devious way. They can seek employment as a care worker in order to carry out their abuse. Clause 50 provides a technique for them to gain immunity from prosecution. It provides many opportunities for manipulative care workers to escape the clutches of the law. Either it is right to criminalise care workers who seek sexual gratification from disabled people in their care or it is not. But it makes no sense to create a halfway house whereby those who start their abuse just prior to taking up the position as a carer, or persuade their victims to say they did, escape the reach of the offence.
	If the defence remains, we might see disturbing examples before the courts such as the following. A man has a job interview at a care home. While there he befriends a patient. Shortly afterwards the two meet up. A sexual relationship begins. The man then receives a job offer from the home and starts work. He continues his sexual relationship with the patient, relying on the Clause 50 defence.
	A further example is where a man with Down's syndrome lives in his home with two other adults with similar disabilities. Social services send in a home help who provides personal care to the man. The home help happens to live on the same street. The two begin a sexual relationship. When the relationship is reported to the police, the home help claims that the relationship began before the position of trust arose. He tells the man with Down's syndrome that unless he backs up his story they will both go to gaol. The man corroborates the home help's story.
	For those reasons, I do not believe that Clause 50 should stand part of the Bill and give people with these manipulative skills a defence against an abuse of vulnerable people.

Baroness Howarth of Breckland: I support the noble Baroness in looking again at this clause. I have some very real practical concerns about working in an establishment where one care worker has such a relationship with someone with that kind of dependency. In all the situations in which I have worked, I have made sure that if someone was in such a relationship, they did not work directly in the same establishment as the person with whom they were having the relationship; otherwise, the whole home and its atmosphere would be compromised by the situation, however appropriate it may or may not have been in advance. It is inappropriate for people to apply for posts in that situation. It would be useful to look at the matter again. I understand the nature of what the clause tries to drive at, but it would be useful to have another look at its implementation.

Lord Falconer of Thoroton: We have had similar debates about relationships of trust involving young people and carers. The noble Baroness, Lady Blatch, accurately identifies the effect of the marriage exception. We are not dealing with married couples where someone cares for his or her partner after he or she has suffered some mental impairment.
	As the noble Baroness, Lady Blatch, said, the clause deals primarily with two situations. One is a situation in which a sexual relationship starts involving someone who already has a mental disorder and the person with whom they have the relationship is not in a care relationship with them. We take the view that, just as a position of trust between a carer and a child or young person should not be abused by someone to enter into a relationship, such relationships should not be criminalised. People with a mental disorder are entitled to a sex life with whomever they choose. It should be a defence to show that the relationship pre-dates the relationship of trust.
	The noble Baroness, Lady Blatch, identified the possibility that it might be difficult to prove precisely when the relationship started. In the criminal law we must identify the relevant criminality. The pre-existing sexual relationship must be lawful. There would be no defence if the sexual relationship would have fallen within the offence set out in the 1956 Act of intercourse with a defective or intercourse between, say, a father and his learning disabled daughter.
	The other situation covered by the exception is an unmarried relationship if the condition of one partner declines, as a result of which one looks after the other. The noble Baroness, Lady Blatch, said that that could be dealt with by marriage. In some cases, it could; in some cases, it could not. If the couple had decided not to get married before, it would be wrong to say that they must do so in order to avoid committing a criminal offence.
	For those reasons, broadly, it would be wrong not to have the defence set out in Clause 50. I note what the noble Baroness, Lady Howarth of Breckland, said, and we will think about it. However, there is a difference between, on the one hand, the appropriate management of a care home, and, on the other, the criminalising of conduct. Somebody might come to work in a home because someone with whom they had had a relationship before a mental disorder set in needed full-time care. I can see how difficult that would make life in the residential home, but, for reasons that should be obvious, it would not be right, in those circumstances, to criminalise the relationship.
	I will think about what has been said, but I am not sure that the answer is to amend Clause 50. I hope that, in the light of what I have said, the noble Baroness will feel able to withdraw her objection to the clause.

Lord Lucas: What is being said is that a sexual relationship is not appropriate in the context of a care relationship if the two people are not married and one is caring for the other. If one is having an affair with someone who goes into care, it would be inappropriate to be employed by the care home and put oneself up as the carer for that person. One would not be in a position to provide the sort of independent relationship that a carer should provide.
	I do not wish to discourage the continuation of a sexual relationship after one person has gone into care. I am saying that the other person in that position should not be the carer. The crime is not so much having the sexual relationship as not declaring it and, therefore, not disbarring oneself from the job of carer.

Lord Falconer of Thoroton: I sought to deal with the point made by the noble Baroness, Lady Howarth of Breckland. Many people will continue to care for their partner, to whom they are not married, when they are at home. Without Clause 50, that would be a criminal offence. I would regard that as wholly inappropriate.

Baroness Blatch: I hope that the noble and learned Lord will take the advice of the noble Baroness, Lady Howarth of Breckland. There is scope, at least, for some reflection on some of the things that were said.
	In response to a point that I raised, the noble and learned Lord recognised the difficulty of proving a "pre-post" relationship, but I am also talking about cases in which someone maliciously establishes such a relationship in order to continue a sexual offence, exempt from the clauses of this Bill.
	The noble Baroness, Lady Howarth, and my noble friend raised the point about a person who is professionally employed to care for someone with whom they have a sexual relationship. As the noble and learned Lord recognised, the arguments are exactly the same as in the previous set of amendments when we were talking about young people. They do at least have the option of doing the same professional work, using their skills professionally, but in a different context. It seems that not only is there a difficulty for the people themselves but that there is a difficulty in terms of relationships generally throughout the institution in which they are working.
	I shall reflect on the particular point made by the noble and learned Lord about a couple who are living at home and where informal care—not that which is employed and paid for by an organisation—is provided by a partner in a loving relationship. I shall think about that but I hope that the noble and learned Lord will continue to reflect on what has been said in the course of this amendment. There is a concern here that it can become a loophole to be exploited, with complete immunity from any kind of prosecution, for what I consider to be unacceptable sexual activities and establishing a relationship which would be damaging within the institution.
	I withdraw my objection to the clause standing part of the Bill now, but I hope that the noble and learned Lord will take on board what has been said during the debate.

Clause 50 agreed to.
	On Question, Whether Clause 51 shall stand part of the Bill?

Lord Astor of Hever: I need not detain the Committee long in speaking against the inclusion of this clause. I was pleased to see that the Government are in accord with us on this issue. I am grateful for the letter which I received from the noble and learned Lord explaining the rationale behind omitting this clause. It states:
	"if it is our policy to make criminal people enter into sexual relationships with mentally impaired people, then it follows that those people should not be allowed to continue with relationships which started in that way".
	We fully support this principle. Clause 51 would provide a dangerous loophole whereby a manipulative care worker might easily induce an unwilling victim to agree to corroborate his account of a sexual relationship which preceded legislation. We welcome the fact that the Government have conceded the dangerous potential of this clause and have chosen to remove it from the Bill.

Baroness Blatch: I am pleased that the noble and learned Lord has added his name to removing this clause from the Bill. I welcome it heartily.

Lord Rix: I echo what the noble Baroness, Lady Blatch, just said.

Lord Falconer of Thoroton: We had this debate before in an earlier clause and we are all agreed.

Clause 51 negatived.
	Clause 52 [Indecent photographs of persons aged 16 or 17]:
	[Amendment No. 285 had been withdrawn from the Marshalled List.]

Baroness Thornton: moved Amendment No. 285A:
	Page 24, line 7, leave out subsections (3) to (5).

Baroness Thornton: In moving Amendment No. 285A and speaking to Amendment No. 286, I should like to open my remarks by referring ahead briefly to Clause 59 which makes it clear that it will be illegal for any person under the age of 18 to participate in commercial pornographic depictions and images which can be distributed, advertised or promoted in the wider world for gain. That clause is entirely to be welcomed and commended. It goes some way towards bringing us into line with the United Nations Convention on the Rights of the Child, but it does not go the whole way. The UN Convention talks about protecting under 18 year-olds from all kinds of pornographic exploitation: it does not limit itself only to considering commercial pornography.
	Clause 52 seeks to deal with the non-commercial end of the spectrum but, in my view, it fails to do so at all adequately. My amendment to Clause 52 falls into two parts. I shall deal with the second part first, and very briefly, because I see that my noble and learned friend the Minister and others are proposing to accept that part of the amendment which will delete subsection (5).
	As it stands, subsection (5) would create two classes of pornography involving 16 and 17 year-old children: that which was produced before the commencement of the Act, which would remain legal, and that which was produced after the commencement of the Act, which would become illegal. Goodness knows, our law enforcement agencies have enough trouble with this whole area without imposing a further burden which would require them to establish precisely when every image was made. One can just imagine when a man was arrested, the first thing he would say is, "Sorry Guv, I thought these pictures were all made before April 2003".
	I fear that the same muddled thinking and the same overly complicated and impractical reasoning is in evidence when we consider the other two subsections I seek to delete; that is, subsections (3) and (4). As it stands, the effect of the clause will again create two categories of pornography involving 16 and 17 year-old children. It would be entirely legal for a 47 year-old man to take sexual pictures of a 16 or 17 year-old child, or of himself and that child performing sexual acts. Provided that only he and the child possessed the images, no crime will have been committed. So we have an image that is made and produced entirely lawfully but becomes unlawful if someone else sees or is given a copy of it.
	Alternatively, I have been advised that the image could become unlawful if, after it has been taken, the child withdraws her or his consent or, perhaps, if the adult were to withdraw his or her consent. That is plainly a ridiculous situation.
	I believe fundamentally that no child of 16 or 17 years should be put in a position where they can be pressurised into taking part in pornographic or indecent depictions, especially since in these digital days it is easy to foresee circumstances where the consequences for the child can be permanent and irrevocable. It makes the idea of the possibility of withdrawing consent absurd.
	Now that digital cameras are more widely owned and used, any digital image is just a mouse-click away from the Internet. Once an image reaches the Internet, it becomes a permanent record that could haunt and harm a child for the rest of their life. Only an adult should be empowered to make such a decision, one that could have harmful and lifelong consequences. Very often the person applying pressure to a 16 or 17 year-old child will be essentially in an abusive relationship with that child.
	I am told that such behaviour is legal, but that does not make it right and it is not an answer. People can do other things legally that we are proposing to make illegal in the future, so in effect if we do not take this opportunity to amend the Bill in the way I propose, this House would be positively condoning the idea that 16 and 17 year-olds can take part in pornography, knowing also that in many circumstances the notion that they may later be able to withdraw their consent is entirely ridiculous. That cannot be right.
	Continuing to allow 16 and 17 year-olds to take part in pornographic and indecent depictions in the digital age fails to comprehend the way in which easily and cheaply available digital technology has greatly reduced the barriers to distribution.
	Young people aged between 16 and 17 fall in and out of relationships almost daily. It is not hard to imagine a "wronged" or "dumped" boy friend posting an image on the Internet as an impulsive act of revenge. Then the image will be permanent. There may already have been many cases of that kind. I fear that, if the clause is passed unamended, many more cases will arise.
	I appreciate that the Bill proposes to make it a crime for any kind of distribution to take place outside the circle of consenting actors, but in reality things will be very different. I believe that many young people and others will fail to understand that whereas they can make, take or possess an image perfectly lawfully, later it could become an illegal image if one or more of the actors withdraws their consent. Some will even find it hard to understand that they can make, take or possess an image lawfully, but not distribute it to anyone outside the range of actors depicted or involved. I use the term "actors" because it would be possible to have multiple participants and multiple makers and takers. If one of the children involved later withdraws consent, does it become illegal for all or any of the other participants to carry on possessing the image? What if all the others are perfectly willing for the depiction to carry on being possessed by the others? Can we envisage disputes arising between the majority who want the image to remain legal and only one child who does not?
	In all the circumstances, is it not simpler and more defensible to set a single age limit for participating in any and all forms of pornography, and for that age limit to be 18? My amendment would create a single age of consent at 18 years, the age of majority. I beg to move.

Baroness Noakes: I shall speak to Amendment No. 286, which is grouped with Amendment No. 285A. I am delighted to see that this is the most popular amendment in the Marshalled List to date and has even attracted the support of the Minister.
	I have tabled the amendment because it is difficult to prove when a photograph or pseudo-photograph was made. Offences under the 1978 Act include the distribution and possession of photographs. If a case was brought it would be difficult to prove that the date of commencement of the Act in 2003 was the significant point for triggering the offence. That is not realistic and we see no useful purpose for subsection (5).
	Amendment No. 285A seeks to remove the limited exceptions for 16 and 17 year-olds. I take a slightly different view from the noble Baroness, Lady Thornton. These are narrowly drawn exceptions which reflect the fact that 16 and 17 year-olds can give valid consent to sexual intercourse and other forms of sexual activity. While the clause treats 16 and 17 year-olds as children—indeed, Clause 52 brings them within the definition of "children"—that is only a partial statement of the truth because they are as much adults as they are children.
	The limited exceptions—which relate to photographs in a relationship, in effect—are a sensible way of balancing the desire to extend the protection to the age of 18 in accordance with international requirements while recognising that valid relationships can exist.

Baroness Howarth of Breckland: I support the amendment. While I accept that the exceptions are narrowly drawn, the way in which young people operate in the modern world causes me huge concern. My experience comes from years of childcare and working with young women who were in prostitution apparently by consent, but when you dug slightly on the surface you found it was certainly not by consent. In my work with the Independent Committee for the Supervision of Telephone Information Services—the premium rate watchdog—I spent years ensuring that young people were not depicted for the use of telephone sex lines.
	Some noble Lords may say that that is far away from this narrowly drawn amendment, but young people see such situations as glamorous and become engaged in them, apparently by consent, and then seriously regret it. I fear that if this is written into statute it will simply give licence to behaviour which at present is held in check.
	Even more serious, it would give an opening to those who would threaten and coerce young people into unwanted sexual behaviour. The abuser would of course say that the young people had consented but, as the noble Baroness, Lady Thornton, pointed out, older abusers often use the power of a relationship to put people in fear and therefore say that they had given their consent.
	Let me give an example of a group of 16 and 17 year-old young men who, together with younger people of 14 and 15, were being photographed and the photographs sold. These people believed that the photographs were being taken and shared between friends, but they called Childline because they became anxious about the wider distribution of the photographs. They would not give names. It was only by using the information they did give and through good contact with the police that we were finally successful in bringing a prosecution.
	These were not simple issues. There was a complexity of understanding among the young people as to what the photographs would be used for and their subsequent discovery that they would be used more widely. Even if young people of 16 believe that they have consented to such photographs, it can destroy their lives. They will deeply regret in the future the photographs being taken, especially, as the noble Baroness, Lady Thornton, pointed out, when they discover that they have been distributed across the world through the Internet.
	Imagine how you would feel if it was your child in these pictures. They are not pretty. They are extremely sordid and sexually explicit. Very often young people may appear to have given consent, but I have listened to them sobbing on the lines at Childline and talking about how they would like to redress and retract what has happened once they understand the full nature of what their apparent consent involved. I am a great believer in children's rights and children making their own decisions, but the young people we are discussing are often vulnerable. I do not believe that they are wise or experienced enough to understand the implications of what they are saying by means of consent. Therefore, I ask the Minister to leave the age of consent at 18 and not reduce it to 16 under any circumstances, however narrowly defined.

Lord Monson: I oppose Amendment No. 285A, not least because it is wholly incompatible with the determined opposition of the Government and of most, though not all, Labour Back Benchers to the valiant efforts of Lady Young, in earlier Bills relating to sexual offences, to protect 16 and 17 year-olds. The noble Baroness, Lady Noakes, put the question much more tactfully and obliquely, but if it is considered that a 16 year-old girl is mature enough to consent to being sodomised, with all the physical dangers involved, by definition she must be mature enough to consent to having a photograph taken. That involves no physical dangers and, for the most part—although the noble Baroness, Lady Howarth, might dispute it—fewer psychological dangers, too.
	I also have reservations about Amendment No. 286, but in view of the fact that the noble and learned Lord, Lord Falconer, has added his name to it, it would be a waste of the Committee's time to explain exactly why. Will he clarify two questions, however? Will there be a defence for someone who takes a photograph assuming that the girl in question—it will usually be a girl—is 18 or 19 when she is in fact 16 or 17? Secondly, what is a pseudo-photograph? The interpretation Clause 81 refers us to the Protection of Children Act 1978. I dashed down to the library to look up that Act; it is quite short, but nowhere in it does the phrase "pseudo-photograph" appear. I would be grateful for clarification of that point.

Baroness Blatch: I speak in support of the amendment tabled by the noble Baroness, Lady Thornton. As a Home Office Minister, the subject was part of my portfolio, and I remember receiving a great deal of unsolicited mail through the post from vulnerable people who had themselves received unsolicited mail through the post. Many of them were elderly, and they were extremely distressed.
	Those people asked me what I was going to do about the problem, but I was given a standard answer that it was an acceptable level of pornography. I discovered to my horror that in urban places such as London, Manchester, Leeds and other major cities where such cases came to court, every time the case was made that this was an acceptable level of pornography that was permitted to be in circulation, that became case law for the whole of the country.
	One day, I said to officials in my department, "I want you to put on my desk what is an unacceptable level of pornography, so that I can see the borderline between what is acceptable and unacceptable". I was staggered by what was considered to be legitimate and acceptable. I had to do a double take at the brown envelope that arrived on my desk, which I was forbidden to take out of the office. I saw what I believed to be young people between the ages of 14 and 16 in the most horrendous guises in these illustrations. Some or many of the photographs were actual photographs, as were the videos. There is some pretty unsavoury stuff in circulation.
	I understand where the noble Lord, Lord Monson, is coming from. Like him, I believe that there is an inconsistency when Parliament lowers the age of consent and will fight to the death to remove Clause 28, and so on, but will argue against the amendment tabled by the noble Baroness, Lady Thornton. That really is inconsistent. It is for that very reason that I want to be consistent. I believe that 16 year-olds today are schoolchildren. These days very few leave school at 16. The Government are doing what they can to persuade that tail end of young people who try to leave school at 16 to stay on.
	When the age of consent was lowered we legalised buggery on girls of 16, 17 and 18 years-old. However inconsistent that is, I want to be consistent. I believe that we as a Parliament should consider the protection of 16 and 17 year-olds. I want to do that.
	We simply cannot go on wringing our hands about all the terrible things that are happening to our young people such as the high incidence of sexually transmitted diseases and teenage pregnancies which are, we are told, more prevalent in this country than any other, while allowing pornographic photography under the law. The noble Baroness, Lady Thornton, made an extremely good speech in which she referred to the nonsense of something being unlawful under the Bill if it is passed being lawful before the Bill is passed. There are many such nonsenses. I believe that for the sake of consistency we should prevent people younger than 18 being involved in the kind of material we are discussing. For all sorts of reasons including coercion, intimidation and the power relationship between two people or often a group of people, people may act in a particular way. However, in the cold light of day they become rueful about what has happened. All kinds of consequences flow from such situations. I support the noble Baroness, Lady Thornton.

Lord Falconer of Thoroton: The purpose of the clause overall is to extend the Protection of Children Act 1978 to cover photographs and pseudo-photographs of children aged 16 and 17. Therefore, the clause extends protection in that regard. I say to the noble Lord, Lord Monson, that a pseudo-photograph is an image, whether made by computer graphics or otherwise, which appears to be a photograph. I hope that that is of some assistance.
	We provide an exception to the extension to 16 and 17 year-olds for a person to make, take or possess indecent photographs of children aged 16 and 17 with their consent. The exception is very limited and is designed to ensure that the photographs are seen only by the person who took the photograph and the person in the photograph. It prevents any kind of distribution.
	Amendment No. 285A, supported by the noble Baronesses, Lady Howarth and Lady Blatch, would remove that exception so that it would always be an offence to take an indecent photograph of a child of 16 or 17 and it would always be an offence to possess such a photograph even if the two people concerned were married. The amendment would permit no distribution of such photographs if they were taken by a husband of his wife or by a wife of her husband. Under the amendment such distribution would constitute a criminal offence.
	I recognise that this is a very difficult area but as the noble Lord, Lord Monson, and the noble Baroness, Lady Noakes, said, the age of consent for sexual activity in this country is 16. It is not possible not to reflect that to some extent in the Bill. We have done so by, as the noble Baroness, Lady Noakes, put it, including as limited an exception as is sensible, but one which reflects the existing law. We think that we have the balance about right in terms of dealing with the exception I mentioned where there is absolutely no distribution of the material.
	The examples given by the noble Baroness, Lady Howarth, would be unlawful. As I understood the first example she gave—I may have misunderstood it—there was distribution of the picture she mentioned for the purpose of prostitution. Obviously, that would be an offence under the Bill as there was distribution other than to the person who consented. I understood her second example also to involve distribution. It would in addition be unlawful as some of the subjects of the photograph were, as I understood it, under 16. We are talking here only about 16 and 17 year-olds.
	For those reasons, I am afraid that the Government are not attracted to Amendment No. 285A. However, the reasons why we support Amendment No. 286 are perfectly clear. The argument for it was put well by the noble Baroness, Lady Noakes, and we are persuaded by it.

Baroness Thornton: I thank Members of the Committee who supported my amendment. The inconsistencies are in Clause 59. As narrowly drawn as the exceptions may be, they do not recognise the reality of the modern world. When my noble and learned friend says that the distribution of the photographs will be limited to the person who takes them and the person who takes part in them, he is not recognising the realities of the modern world, or of young people's relationships and what happens when 15 year-olds, 16 year-olds and 17 year-olds fall out with each other. In my view the exceptions are not narrowly enough drawn.
	I accept that the issue about a man and wife—a young married couple—is a problem. Therefore, I am happy to withdraw the amendment on the basis that it is not right for that. However, we need to return to the subject, because I am not satisfied with the answer that I have received from the Minister. The limit that we may propose on the liberty of 16 year-olds and 17 year-olds not to be exploited in such a way is not satisfactory.

Baroness Blatch: Before the noble Baroness withdraws the amendment in order for there to be more reflection, I want to say that distribution smacks of a positive act. Someone physically and positively has to distribute. However, we all know that there are ways for photographs and material to be seen by other people. They can be left around; it can be made certain that people see them, but without someone necessarily having formally distributed them. The noble Baroness is very much more in touch with the real world. Other people would see the material, and proving distribution might be extremely difficult.

Baroness Thornton: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes: moved Amendment No. 286:
	Page 24, line 28, leave out subsection (5).
	On Question, amendment agreed to.
	Clause 52, as amended, agreed to.
	Clause 53 [Criminal investigations or proceedings]:

Baroness Thornton: moved Amendment No. 287:
	Page 24, leave out lines 35 and 36.

Baroness Thornton: I thank the Minister for Amendments Nos. 288 and 289, which expand the reason for my amendment. At the moment, there is no defence in law to the charge of making a child pornographic image. The word "making" covers copying an image, say from a hard disc on to a floppy disc or a CD. That means, however, that even law enforcement officials and lawyers involved in a case cannot lawfully be handed copies of the evidence. There have been cases where that has been a problem. That is obviously ridiculous, and the effect of the amendment is to create a system that authorises a limited series of people to be able to make such images as their legal jobs require. I beg to move.

Lord Falconer of Thoroton: We support Amendment No. 287, tabled in my name and that of the noble Baronesses, Lady Thornton and Lady Noakes. It would remove the separate exception for the purposes of criminal proceedings from the clause. However, it is clearly necessary to allow for "making" images in the course of criminal proceedings, as the noble Baroness said. It may have been her intent to place "making", for the purposes of criminal proceedings, within the authorisation process. I agree that that is a helpful approach, and Amendment No. 288 would achieve that. I hope that the package is acceptable to the Committee.

On Question, amendment agreed to.

Lord Falconer of Thoroton: moved Amendment No. 288:
	Page 25, line 1, after "crime" insert ", or for the purposes of criminal proceedings,"
	On Question, amendment agreed to.

Lord Falconer of Thoroton: moved Amendment No. 289:
	Page 25, line 14, at end insert—
	"( ) After Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) insert— "EXCEPTION FOR CRIMINAL INVESTIGATIONS OR PROCEEDINGS
	3A. (1) It is not an offence under Article 3(1)(a) for a person to make an indecent photograph or pseudo-photograph of a child in accordance with an authorisation under this section.
	(2) An authorisation may be given only if it appears to the person or persons giving it to be necessary for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world, or for any particular purpose falling within those purposes.
	(3) An authorisation—
	(a) must be in writing,
	(b) must specify the person to whom it is given and the purpose or purposes for which it is given, and
	(c) may specify conditions to which it is subject.
	(4) An authorisation may be given by—
	(a) the Chief Constable of the Police Service of Northern Ireland,
	(b) the Director General of the National Crime Squad,
	(c) the Director General of the National Crime Intelligence Service,
	(d) the Commissioners of Customs and Excise, or
	(e) the Director of Public Prosecutions.""

Lord Falconer of Thoroton: This amendment extends to Northern Ireland the defence to making indecent photographs of children, the defence being that such acts are necessary for the purposes of criminal proceedings and are authorised. There is no policy difference between the operation of the defence in England and Wales and its operation in Northern Ireland. The amendment ensures that policy determined by the Bill on this issue can apply equally and offer the same protection to those investigating child sex offences in Northern Ireland as to their counterparts in England and Wales. I beg to move.

On Question, amendment agreed to.
	Clause 53, as amended, agreed to.

Lord Grocott: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at one minute past ten o'clock.